If product safety matters, the rules must apply to everyone

I suspect that, in all government departments, there is a hapless civil servant whose job it is to go through every publication before it goes out of the door to sprinkle the words of the day throughout the text in an attempt to create the impression that all government output represents part of a cohesive strategy.

What else can explain the repetition of the word “growth” in the construction products reform white paper (that was open to consultation until last month) no less than 37 times – but the absence of any ideas that will encourage growth and quite a few that will damage it?

It probably also betrays a certain embarrassment on the part of government (all governments) at the thought of introducing new regulation, so that in time the unanimous cry that “this must never happen again”, the very reason why reform is necessary, starts to get drowned out by other noises – pragmatic, economic or political.

The same tidal shift in priorities may also explain why the white paper starts out on solid ground but then seems to go astray.

To start with the positive, everyone looks forward to the rosy future painted in the white paper, the public benefit if it works out like that and the combination of opportunity and challenge presented to product manufacturers in particular.

Indeed, who would argue against the proposition that claims made for products should be honest and validated; that product information should be clear, accurate, up to date and sufficiently informative for users to make reliable decisions about fitness for a particular use; that information should be digital by default; and, in time, that all that information should be centrally available, ideally in standardised format?

Where construction products reform goes wrong

But things seem to have come unstuck in turning these admirable objectives into deliverable policy in the face of a combination of intractability, practicalities and politics. The result is a white paper that has so many unresolved issues that it could more accurately be described as a “pale green paper”.

This, and the introduction of multiple regimes for product regulation depending upon the origin and route to market of the product, introduces still more uncertainty and complexity into a system that was already generally accepted to be too complex; so those who manufacture, distribute, specify, install, operate and maintain products still have no baseline understanding of the duties that each owes to the others.

Just one such concern relates to what the duties of the manufacturers themselves should be, and this is where one senses the hand of politics (and probably the Treasury), as many of the difficulties posed by the white paper lie in a single decision: to allow access to the UK market, without the imposition of any additional regulation, for any products bearing the EU’s CE mark, while simultaneously applying new regulatory burdens at home.

The idea that products should be safe can hardly be described as controversial, subject to what it actually means

The most egregious example of this is that UK businesses will need to comply with a general safety requirement; and the idea that products should be safe can hardly be described as controversial, subject to what it actually means. In response to that, the industry has, in PAS 2000, come up with a definition of what manufacturers might reasonably be expected to do to demonstrate that their products are indeed safe – and this could be a model of government setting out clear duties and industry defining what reasonable steps should be taken to comply.

Why equal standards matter for building safety

CE-marked products, however, have no such requirement, even though it is specifically acknowledged by the government that CE marking is no indication of safety – nor indeed of anything else other than compliance with a standard that has been set primarily for the purposes of creating a level playing field for trade.

Simultaneously, new requirements are being imposed upon UK testing houses, which again should be uncontroversial, responding to the frequent (but frequently baseless) allegation that testing houses dance to the tune set by manufacturers who pay their wages by making clear that, when carrying out what is effectively a statutory function, they owe a duty to the public interest. Again, however, there is no way that the UK government can impose any new requirements on testing houses based in the EU.

No change will be made to the product regulation regime for CE-marked products (used extensively in the refurbishment of Grenfell Tower) unless or until the EU chooses to make them

The recognition of CE marking without the imposition of additional requirements (and particularly with the exemption of marked products from the general safety requirement) leaves the UK exposed to the risks implicit in the existing EU CPR regime until such time as it is reformed. So, notwithstanding the announced intention to initiate an “ambitious programme of system-wide reform”, no change will be made to the product regulation regime for CE-marked products (used extensively in the refurbishment of Grenfell Tower) unless or until the EU chooses to make them, with the UK having no direct influence in any reform.

By contrast, whatever remedies might be considered to address the anomalies in the current proposals, the argument must be binary: if the measures proposed are necessary for public safety, then they should apply to all products, irrespective of their origin and route to market; and if they are not necessary for public safety, then imposing them on UK businesses is both disproportionate and discriminatory.

The net result of this twin-forked policy of raising the regulatory barriers for the domestic market but lowering them again for imports is that it will be easier to both manufacture and test products in Munich than it will be in Manchester – a hideous irony that might not be lost on (say) the former mayor of that fine city. And, far from generating the growth repeatedly stated as an objective in the paper, it will drive both production and testing overseas.

Priorities for the Building Safety Regulator

Meanwhile, that government elf has been at work again, this time with the Building Safety Regulator’s strategic plan for 2026/7 which kicks off by telling us that the BSR “sits at the heart of the government’s mission to… support economic growth”, throwing in a couple of references to the government’s commitment to delivering 1.5 million homes – a figure that could hardly be less credible if it were written on the side of a bus.

But the first duty of the regulator must surely be to play its part in meeting the government’s other declared commitment to “ensuring what happened at the [Grenfell] Tower is remembered and never happens again.” Everyone must be aware that, as frustration rises beyond anger, and the timetable for reform stretches years ahead, the tenth anniversary of that fire will not pass as quietly as the ninth seems to have done. And as new questions of accountability arise, I do not think that the first question for the Building Safety Regulator will be, “what have you done for the economy lately?”

Paul Morrell is the former chief construction adviser (2009-2012) and lead author of an independent review into construction product testing