Schedule 11: Construction products regulations
Paragraph 1
Effect
- This power will be used to create regulations by the Secretary of State for the marketing and supply of construction products in the United Kingdom - the construction product regulations.
Proposed use of power
- This will be achieved in three ways: (a) for construction products on the market to be subject to a general safety requirement, (b) for designated products (products which perform to a designated standard), and products subject to a technical assessment (c) to create a list of safety critical products (where the failure of such products would result in death or serious injury). This is set out in more detail in the paragraphs below.
Background
- The existing regulatory framework does not cover all construction products that might present a safety risk. These regulations seek to correct this by extending the regulatory framework to all construction products.
Paragraph 2 - General safety requirement
Effect
- This paragraph gives the Secretary of State the power to create regulations to ensure that construction products placed on the UK market are safe. The definition of safe is that a product under normal or reasonably foreseeable conditions of use does not present any risk to the health of safety of persons or, if it does, the risk is as low as it can be compatible with using the product. "Use" includes storage, transportation or packaging. Reasonably foreseeable conditions will include circumstances in which the product might come under stress, for example in a fire.
Proposed use of power
- The regulations will contain requirements dealing with the assessment of risk and taking steps to avoid that risk that can be imposed on persons carrying out activities in relation to construction products and their authorised representatives (as identified in regulations). The regulations will also contain market surveillance powers and powers to enforce where such products are not safe. The regulations will also allow for the regulation of the accuracy of claims about performance made in advertising and marketing material.
Background
- These will be new powers. Following the Grenfell Tower fire, it became apparent there was no general safety requirement applicable to construction products. Such products are not usually covered by consumer protection legislation.
Example 1
A manufacturer launches a new kind of brick tie onto the market. This product is not subject to a designated standard or to a technical assessment and has not been added to the safety critical list (but could be added). After a few months in use, when installed correctly, these brick ties begin to fail, bringing about the risk that walls incorporating these ties will collapse, injuring passers-by. The proposed regulations will require the manufacturer to ensure their products can be used safely by identifying the risks associated with the use of the product, and doing what can be done to mitigate this risk, including providing information about risks associated with using the product. If the product cannot be used safely, the product must be withdrawn from the market and, if possible, corrected before it is placed back on the market. The regulations will allow regulators to take action if the products are not removed from the market, and, potentially, bring a prosecution against relevant parties in the UK supply chain.
Example 2
If claims have been made through advertising, or in marketing material, about the performance of the ties which were misleading, then the regulations will allow regulators to take enforcement action against the relevant party, issue sanctions and potentially bring prosecutions. For example, if false statements are made about the mechanical performance of the new kind of brick tie which impacts its suitability for a particular intended use, the regulations would allow the relevant authorities to take action in relation to such a misleading performance claim, initially by requiring the misleading information to be corrected. This could go as far as requiring the product to be removed from the market until the misleading claims are rectified, with the potential for penalties up to, and including, fines or even imprisonment in certain circumstances.
Paragraphs 3 - 9 - Construction products with designated standards or technical assessments
Effect
- These paragraphs allow the Secretary of State to impose standards of product performance and other specific requirements to be met by persons carrying out activities in relation to construction products (for example, manufacturers, their appointed representatives, importers and distributors of construction products) where products are subject to a designated standard or conform to a technical assessment.
- These powers can be exercised UK wide, but allow for different provision for different parts of the UK. These paragraphs give the Secretary of State powers to set up a regime for ensuring that certain construction products once on the UK market must perform to designated standards, or conform to a technical assessment. This power will not be used for Northern Ireland, where construction products subject to an EU harmonised standard or conform to a European Technical Assessment will continue to be subject to EU Law. This provision will mean that reliable information is available to professionals, public authorities, and consumers on the performance of such construction products, that the performance of such products can be monitored, assessed and verified, and where appropriate products can be withdrawn from the market. These paragraphs also give the Secretary of State powers to impose requirements in relation to any statements or other claims made in advertising material in relation to the performance of products with designated standards or technical assessments.
Proposed use of this power
- This power can be used to replace the existing EU based regime, and design it to meet the demands of the UK market. The type of requirements which can be imposed include, amongst other things, the requirement for a declaration of performance; the provision of information, including information about risk; a requirement for the monitoring, assessment and verification of product performance; the taking of corrective action; recording and investigating complaints; notification of risks to relevant authorities and co-operation with relevant authorities.
- The power will allow the imposition of requirements in relation to any statements or other claims made in advertising or marketing materials about the performance of products. This will bring misleading construction product performance claims into the construction products regulatory regime. The regulations will contain details of any prohibition against making false statements about performance.
Background
- The current regulatory regime for construction products derives from EU law. This power will allow the Secretary of State to extend or amend that regime, or replace it.
- The Grenfell Tower Inquiry and internal and external investigations relating to construction product advertising have highlighted the severe consequences of misleading product performance claims. This power will also allow the Secretary of State to impose requirements in regulations on the making of claims or statements about the performance of construction products, including those made in advertising products, and for relevant authorities to investigate, enforce against and sanction non-compliance with such regulations.
Example 1
Products subject to a designated standard or a UK technical assessment are currently covered by existing EU harmonised standards, and in the future new designated standards and technical assessments can be added. This could happen where the EU creates new EU harmonised standards, and the Secretary of State chooses to designate them. The Secretary of State is also able to choose to designate other new standards, including UK and international standards. Going forward, there will now be flexibility to change this regime for the UK. The Secretary of State may want to revise the regulations for these products to reflect national wishes and concerns, and to ensure that it continues to meet the needs of the UK market.
Example 2
A product subject to a designated standard is placed on the UK market. Marketing material, or advertising about the performance of the product is misleading. For example, claims are made that the product will comply with certain building regulations, but in fact it doesn’t. The Secretary of State will be able to take powers in regulations which would allow the relevant authorities to take action in relation to such a misleading performance claim, initially by requiring the misleading information to be corrected. This could go as far as requiring the product to be removed from the market until the misleading claims are rectified, with the potential for penalties up to, and including, fines or even imprisonment in certain circumstances.
Paragraphs 10 - 14 - Safety-critical products
Effect
- These paragraphs give the Secretary of State the power to create a list of safety critical construction products, regulate those products by reference to safety critical standards, create a market surveillance regime and create powers of enforcement. These are products which, if they fail as part of a construction, could cause death or serious injury to a person. This list will not include products subject to a designated standard. Safety critical products will be identified with the assistance of industry and others as the Secretary of State considers appropriate. These products will be subject to equivalent regulation to products subject to a designated standard.
- The type of requirements which can be imposed include, amongst other things, the requirement for a declaration of performance; the provision of information, including information about risk; a requirement for the monitoring, assessment and verification of product performance; the taking of corrective action; recording and investigating complaints;, notification of risks to relevant authorities and co-operation with relevant authorities.
- These paragraphs also give the Secretary of State powers to impose requirements in relation to any statements or other claims made in advertising material in relation to the performance of products included in the list of safety critical construction products.
Proposed use of power
- To create the regulations as described above.
Background
- This is a new provision.
- The consequences of the Grenfell Tower fire revealed there is gap in the regulation of construction products if they are not covered by an EU harmonised standard, or conform to a EU Technical Assessment (now a designated standard and UK Technical Assessment) or regulated as a consumer product. The purpose of this power is to remove this gap for products the Secretary of State identifies as safety critical, allowing such products that do not meet their claimed performance to be withdrawn from the market.
Example 1
Should the Secretary of State consider (following consultation) a particular construction product, for example a type of fire door, should be included in the safety critical list, the Secretary of State will be able to commission the creation of a standard, against which the manufacturer must declare the product’s performance, and to which standard the performance of products should consistently meet. This will mean any purchaser or user of this product will have reliable information about how it will perform, and the performance can be monitored and where necessary enforcement action taken.
Example 2
A product is added to the safety critical list. Marketing material or advertising about the performance of the product is misleading. For example, claims are made that the product is energy efficient to a certain standard, but in fact it isn’t. The Secretary of State will be able to take powers in regulations which would allow the relevant authorities to take action in relation to such a misleading performance claim, initially by requiring the misleading information to be corrected. This could go as far as requiring the product to be removed from the market until the misleading claims are rectified, with the potential for penalties up to, and including, fines or even imprisonment in certain circumstances.
Paragraph 15 - Enforcement
Effect
- These powers will allow the Secretary of State to create market surveillance and enforcement powers relating to the regulation of products subject to a designated standard, products which conform to a technical assessment, products on the safety critical list, and the requirement for products to be safe.
Proposed use of power
- This power can be used by the Secretary of State to create an appropriate market surveillance and enforcement regime, to underpin the new regulatory regime created under the powers described above. These new powers can be exercised by relevant authorities (defined as the Secretary of State, or other Minister of the Crown, and a local authority, including Trading Standards). The intention is to, in effect, extend the existing powers under the Construction Products Regulations 2013 to the new regulatory regime, strengthening them to more closely align with the more extensive powers available for the enforcement of other product regulations through the Consumer Rights Act 2015, and extend the powers the Secretary of State has under the regime.
- The types of market surveillance and enforcement provisions which can be created include: monitoring and investigating compliance with construction product regulations. This can include a right to enter property and seize and retain products or evidence of non-compliance; a requirement for the provision of information; securing compliance with such regulations, and creating procedures for managing non-compliance, or suspected non-compliance. This can include, for example, a requirement to warn others of the risk, the marking of a product to indicate such risk, the suspension for a specified period, or prohibition, of the marketing and supply of such a product, and forfeiture. It also extends to accepting undertakings (with sanctions for failure to comply). There is also provision for creating an appeals process. The intention is for the market surveillance and enforcement provisions created under this power, to be used also by relevant authorities to monitor, investigate and enforce against misleading claims about the performance of construction products.
Background
- The Independent Review recommended that Government should ensure that there is a more effective enforcement regime with national oversight to cover construction product safety. The current regulatory framework sets out the enforcement and market surveillance powers of the Secretary of State and Trading Standards in relation to products where there is a designated standard or a United Kingdom Technical Assessment only. These regulations will allow us to create equivalent provisions for enforcement for products included on the safety critical list and those covered by the requirement to be safe. This means all construction products will be covered by an enforcement regime. The regulations can provide such powers can be exercised by relevant authorities (as defined).
Example
If, for example, it is a certain type of fire door produced by one manufacturer is found to be unsafe, it will not matter whether that particular type of fire door is subject to a designated standard, conforms to a technical assessment, or is on the safety critical list, the relevant authorities (as defined) will be given a full range of enforcement powers to ensure it is either made safe, or taken off the market.
If a claim is made in advertising or marketing material about the performance of fire doors, for example that they have a certain level of fire resistance, and that is not true, the relevant authorities will be given powers to, for example, require the advertising or marketing material is withdrawn, and/or that the product can no longer be supplied in the UK until the advertising or marketing material is corrected.
Paragraph 16 – Costs
Effect
- This paragraph gives the Secretary of State power to make provision for a relevant authority (as defined) to impose charges on a person carrying out activities in relation to construction products or an authorised representative of that person. Provision under this power includes for the resolution of disputes and appeals process, and may confer a discretion on the relevant authority.
Proposed use of power
- This power will be used by the Secretary of State to create a charging regime which will allow for the recovery of some of the costs attributable to the operation of the regulatory regime. The regulations will set out in detail when a charge can be applied and to whom, how the charge will be calculated and how decisions about charging can be appealed.
Background
- The Independent Review recommended that Government should ensure that there is a more effective enforcement, complaint investigation and market surveillance regime with national oversight to cover construction product safety. These powers enable the relevant authority (as defined), to recover some of the costs attributable to this new regime.
Example
This charging authority could be used, for example, to charge for attendance at conferences, for publications or providing advice and support. It could also be used, for example, if local Trading Standards discovers through the exercise of its market surveillance and enforcement functions that a construction product was found to be non-compliant with these regulations. It could seek to recover the costs of the relevant regulatory functions exercised in establishing and dealing with this non-compliance.
Paragraphs 17 – 19 – Information
Effect
- This paragraph gives the Secretary of State power to provide in regulations for the provision of information by relevant authorities with other relevant authorities, or with persons specified, or identified in regulations. This may include circumstances in which information may, or must be, provided and includes a range of provision for how such provision of information can, or must be, managed. There is provision for the publication of information by relevant authorities. There is also provision for the creation of criminal offences.
Proposed use of power
- To create a regime for the effective provision of information to support the efficient regulation of construction products in the UK.
Background
- There are a number of bodies in the UK, including those with regulatory or enforcement functions, which may, in the exercise of their functions, obtain information about construction products which are, or may be, unsafe. This regime will create an information Gateway which will allow for this information to be shared lawfully with the appropriate relevant authority (and between such authorities where necessary) and which can then be used in the exercise of their regulatory functions. The regime will allow for the publication of information, which could assist anybody considering using such products. This regime is intended to support the effective exercise of the regulation of construction products in the UK.
Example
If, for example, a fire and rescue authority in England has information about the contribution to the spread of fire of a particular construction product, the fire and rescue authority will be able to share that information with the relevant regulator, who would then be in a position to investigate and take any appropriate enforcement action.
Paragraphs 20 - 22 - General and supplementary
- Paragraph 20 provides that different provisions may be made for different purposes and for different parts of the United Kingdom. This is necessary in Northern Ireland for implementation of the effect of the Northern Ireland Protocol.
- Paragraph 20(1)(c) provides for transitional, transitory, consequential or supplementary provisions or savings.
- Paragraph 21 gives a power to repeal, amend or re-enact retained EU law, the 2019 and 2020 regulations, and any enactment, other than an Act.
- Paragraph 22 sets out details of the offences which can be created in construction product regulations, any relevant procedures applicable, and the type and range of sentences which can be imposed.
Paragraph 23 - Procedure
- This paragraph provides that regulations under this Act are to be made by statutory instrument. Regulations that create the list of safety critical products or remove any products from the list, or which create any criminal offences are subject to the affirmative procedure. Otherwise, they are subject to the negative procedure. Where regulations include provisions which are separately subject to the affirmative and negative procedure, then such regulations will be subject to the affirmative procedure. This paragraph also enables a statutory instrument to contain both construction products regulations and regulations relating to costs contribution orders, provided that it is made using the draft affirmative procedure.
Paragraph 24 – Interpretation
- This paragraph explains what is meant by the key terms in this schedule.
