Testing times: reforming the UK product testing regime

An independent review of construction products testing has made key recommendations. Hywel Davies reports

The government is committed to transforming the built environment by raising standards and promoting a culture of safety. The Building Safety Act 2022 is being delivered through a series of implementing regulations, with far-reaching reforms to the planning, design and delivery of homes in England.

A key area highlighted in evidence to the Grenfell Tower Inquiry, and identified in Dame Judith Hackitt’s review of Building Regulations and fire safety, was product testing and certification. Dame Judith’s review stated that the system for product testing, labelling and marketing is complicated, making it difficult to know whether the right products are being used.

As a result, in January 2021 the government commissioned an independent review of the system and, on 20 April 2023, it published Testing for a safer future, the final report, with a written ministerial statement to both Houses of Parliament.

In his statement, Secretary of State for Levelling Up, Housing and Communities (DLUHC) Michael Gove recognises historic failings in the system by which construction products were tested, assured and made available for sale. He commits government to ‘ensuring the testing regime for construction products is effective and inspires public and market confidence’, and to publishing ‘proposals for reform of the UK’s construction product regime’.

The review concludes that the failings in the product-testing regime identified at the Grenfell Tower inquiry are systemic

Led by Paul Morrell OBE and Anneliese Day KC, the review notes the widespread failings in the product-testing regime identified at Grenfell and concludes that they are systemic and not isolated or unique to that project.

It then sets out to ‘consider how confidence can be placed in that regime in the future and what needs to change to ensure this can happen – in short, how testing and the data derived from it can be restored as a public good’.

The authors note that the current system is derived from the Construction Products Regulations 2013, which implemented the eponymous EU Regulation designed to create a single market in construction products. More accurately, it facilitated a single market for one-third of products – those covered by harmonised European product standards. The regulation was not designed to ensure a safe or sustainable product or building.

The authors outline that there isn’t a specific ‘UK system for testing the safety of construction products’; rather, there is a system for assessing conformity to whatever performance requirements are set down in the standards, for those products covered by standards. Everything depends on those standards that are in
place to define what characteristics are tested, how, and how often.

Outdated standards

While the standards framework itself is good, many standards are outdated, inconsistent or non-existent; the review authors report that research conducted in 2020 on behalf of the DLUHC (formerly the Ministry of Housing, Communities and Local Government) questions the fitness for purpose of several current standards critical to testing products for resistance and reaction to fire.

The role of Conformity Assessment Bodies is also critical, as is their oversight by the UK Accreditation Service. Echoing Dame Judith’s findings, the review notes that enforcement has been almost non-existent, with very limited investigations by the authorities, ‘so that bad actors feel they can bypass the regulations without consequence’. It says ‘without effective enforcement, the market cannot function freely, fairly and safely’ – and, we might add, without enforcement there can be little confidence in the regime.

The review acknowledges the changes that the Building Safety Act enables in relation to product testing and enforcement, and calls for a culture of honesty and integrity, with breaches ‘risking a significant sanction’. It says ‘energetic and effective’ enforcement, as well as being a deterrent to wrongdoing, is ‘an encouragement to those who play by the rules if it means they no longer have to compete with those who do not do so’.

Writing in the foreword, Dame Judith welcomes the creation of a construction products regulator under the Office for Product Safety and Standards, noting that ‘it has become increasingly clear that improvements in construction product performance assessment must form a critical element of the new, stricter regulatory framework’.

‘To that end the Government’s decision to create a Construction Products regulator under the Office for Product Safety and Standards (OPSS) is welcomed.’ Dame Judith adds: ‘This report marks a major step forward in mapping the complexity and opacity of  the current construction product-testing regime: significant improvements can and should be made. This is an opportunity which must be taken, and with some urgency.’  Given the scale of the challenges revealed and the time that reform will take, she is absolutely right – there is no more time to lose.

  •  Testing for a safer future: An Independent Review of the Construction Products Testing Regime (bit.ly/CJMay23HD1) was published on 20 April 2023, following a Written Ministerial Statement to Parliament by the Secretary of State, Rt Hon Michael Gove MP (bit.ly/CJMay23HD2)