Former government chief construction adviser Paul Morrell detects more than a touch of politics in the government’s long-awaited Construction Products Reform Green Paper
“Always remember,” said a friend well used to the territory as I arrived for my brief spell in Whitehall, “that the primary business of politics is… politics”. It may sound obvious, but just how pervasive this truth is (when one might have naively hoped that the primary motivation for politics would be the public good) becomes apparent only when you have witnessed it for a while. Then you see how both policy and government communications are profoundly influenced by how they will play in the press and on the street, and also how they might steal ground from parties in opposition.
Once you enter that hall of mirrors, though, you see it everywhere – possibly even when it isn’t actually there and things can be taken at face value. But I see politics everywhere, both in the government response to the final report of the Grenfell Tower Inquiry and in the Construction Products Reform Green Paper 2025, which was published at the same time.
More than four years ago, I took a call made on behalf of the secretary of state in the Ministry of Housing, Communities and Local Government (MHCLG) asking if I would lead an independent review of the construction product testing regime, following some of the shocking evidence emerging in the public inquiry. Since then I’ve spent so much time mired in the complexities of that regime that I was naturally interested to see whether the government had found a way through the maze.
Spoiler alert: on the evidence of the green paper, it hasn’t. Indeed, the lack of any obvious development of the thinking expounded in the review or of any coherent overarching strategy that will lead to an effective regime to ensure that only safe products make it onto the market is a real disappointment.
So, almost three years after the Building Safety Act passed into law, establishing the principle of new duties on all of those involved in construction, we still don’t know what duties will be owed by those who manufacture and market construction products.
The EU question
At our first meeting with the building safety minister (the first of four who have been in post since then – welcome to Whitehall) we posed a series of questions about the big decisions that needed to be made before the small ones could follow. The first of those was whether policy should be based on the principle of maintaining alignment with the equivalent EU regime or one of divergence. Things don’t get much more political than that, and of course no answer was forthcoming – and subsequent reminders of the question elicited frozen stares from nervous civil servants, who quite possibly thought that even asking was more evidence of political naivety.
The question was not a trick. It is not part of an independent review’s business to make assumptions about so far-reaching a decision with implications way beyond its remit. It is simply that whichever decision is made has some pretty loaded consequences. And, in the kind of conundrum that we elect governments to resolve, either decision has a downside: align, and we have to take what we get from the EU (without any ability to influence it now); diverge, and we need to replicate all the organisational infrastructure that exists in the EU for operating the regulatory regime. In addition, UK manufacturers exporting to the EU would have to deal with two different regimes.
So, with a new government, and one with a declared intent of a “reset” with the EU, it was no surprise to see, first, an extension of the recognition of CE marking announced as soon as Parliament reconvened after the conference season that followed the election.
Then, among all the political confetti in the green paper (with it being claimed that proposals will not just make people feel safe in their homes, but also aid economic growth and help deliver 1.5 million homes in the life of this Parliament – well, something has to) came an apparently indefinite extension of recognition. That effectively means that EU products carrying the CE mark get a free pass for importation into the UK for the foreseeable future.
The problem is not with that decision: it is clearly a legitimate one for the government to make. It is probably a practical one too. And it is certainly the one that manufacturers who export to the EU would be looking for, to avoid having to go through separate processes to put products on the market in the EU and in the UK.
Again, the problem is that the decision has consequences, and those consequences seem to be recognised in the text of the green paper itself, which notes that “the current regime does not foster a sufficient focus on safety. It fails to provide key safety information to those selecting and using products, nor does it provide the necessary assurance that products are safe.” But this caveat is not reflected in many of the paper’s proposals.
Had we been told, back in 2021, that proposals for reform should be based on the principle of continuing recognition of CE marking, then the report and its recommendations would have looked different, with more attention paid to the implications for domestic policy. We would have started with proposing as a foundational principle that the regulation of the manufacture and marketing of construction products originating in the UK should be no more burdensome than those manufactured in the EU. Otherwise, the regime effectively disadvantages domestic production – and making it more difficult to develop products in Birmingham than in Belgium would surely represent unpalatable politics (that word again).
If that is accepted, then a number of consequences follow. For example, the requirements imposed on testing houses should be no more onerous than those under which their equivalents in the EU operate – or, again, there is an additional burden for manufacturers operating in the UK or an incentive for them to seek CE marking for their products even if they do not intend to export to the EU. That would in turn discourage investment in the facilities sorely needed in the UK.
It would also be anomalous if addressing a major disadvantage of the existing system – the fact that the majority of products are not covered at all – results in the requirements for products that were not previously regulated in any way hereafter being greater than those for products that were regulated. This suggests that the steps necessary to comply with a key plank of a new regime, a General Safety Requirement, should be no greater than those for products covered by a designated standard.
Whether or not these principles are to be followed is clearly a political decision. But if they are, tthey call into question many of the proposals advanced in the green paper – some of which (such as the creation of a duty to the public interest where testing houses are carrying out a regulatory process) were key recommendations of the testing review and were regarded as critical to public safety.
For the same reason, it is hard to see much future in some of the questions asked in the consultation. For example, the green paper ponders whether conformity assessment external to the UK might be recognised. But if CE marking is accepted, then surely the acceptance of assessment carried out external to the UK is implicit – and if it is acceptable for products covered by designated standards, why would it not be for any other UK regulatory assessment that might be called for in the future?
In the Green Paper, many hopes are attached to the reform of the Construction Products Regulations (CPR) in the EU. It is as if MHCLG sees that reform rather as somebody who is drowning sees an approaching lifeboat. But although there may be more than a hundred references to safety in the new EU CPR, they are mostly in connection with environmental safety. Rather than being about personal safety, the planned reforms are principally about the circular economy, digitalisation and strengthening the EU single market, and the details as to how any of that will work are still awaited. Real change therefore depends on negotiations involving 27 nations and the time that is likely to take.
System weaknesses
In the meantime, we have to accept the weaknesses in the current regime. These weaknesses relate principally to a system that is not designed to confirm products as safe but just (in principle at least) that they comply with the performance requirements of the statutory standards, which may or may not address safety – at all or adequately.
That is, it must be said, a problem that exists just as much under the UK system now, given that UK designated standards are just EU harmonised standards that have changed their name by deed poll. So, where standards are not fit for purpose in relation to safety (and government has been advised that some are not, while the German technical institute DIBt characterises about 20 per cent of all harmonised standards as inadequate in some way), then it’s a case either of waiting for the EU to update the standards, or to do it ourselves.
What we have no control over, however, is the operation and oversight of the testing and assessment process itself, where it is conducted in the EU. To cite just one example of weaknesses in that system, taken from the testing review but actually repeated in the green paper, it is possible for a manufacturer to make a prototype of a product specifically for the purposes of testing, get that tested and marked, and then place it on the market without any real guarantee that the product manufactured in series production will match the same performance.
Given these structural difficulties, some of the questions asked in the green paper frankly sound like a desperate cry for help – for example, in asking the industry how we might impose additional restrictions on the sale of products coming from the EU while also accepting CE marking. That is potentially a matter of complex law rather than of construction practice, and the answer will also depend (as will the answer to many other questions) on whether there is any intention on the part of the government to seek a mutual recognition agreement with the EU.
Instead, it would make sense to address the realities of a market in which CE marking will continue to be recognised and to develop a strategy to protect against the risks implicit in that. So what would be the bones of such a strategy?
It should start by countering weaknesses in the system by a massive increase in the amount of testing conducted by the products regulator to ensure that declared levels of performance really are achieved. This would be part of a coherent, properly resourced and funded programme of enforcement that will be a necessary part of any future regulatory scenario if the mistakes (or worse) of the past are not to be repeated.
Improving the standard
That might deal with products that fail to match up to their declared performance, but it leaves the issue of products that represent a risk notwithstanding compliance with the standard because of shortcomings in the standard itself. The longer-term defence against that is to review and revise the standards themselves. In parallel, though, there needs to be a mechanism that can respond quickly to incidents that suggest an inherent problem with a product on the market.
The task would be to identify a need for a revision to standards and/or guidance, while at the same time avoiding a knee-jerk overreaction that needlessly disrupts the construction of the buildings we need or adds to their costs. Where that leads to a performance that is higher than is demonstrated by CE marking, and the shortfall is critical to safety, then that must become a national requirement. This could be achieved either by insisting that all products meet the higher standard as a condition of being placed on the market or, taking a lead from the practice in Germany, making the achievement of the higher standard a condition of Building Regulations approval.
In parallel, and notwithstanding the call for ever more regulation administered by regulators who are already overwhelmed, I think there is still plenty of mileage in improving voluntary standards and codes of practice, whether they might relate to individual products or testing standards, or to meeting a general safety requirement for products, producing product information, populating the golden thread or operating third-party products and process certification schemes that can be relied on.
In a world in which clients, designers and contractors are required to take reasonable steps to meet a duty of compliance, such voluntary codes and standards might actually become one measure of what represents acting reasonably.
So finally, clients in particular should be encouraged to meet their own duties in respect of safety by making procurement decisions by reference to those codes and standards, and requiring those they hire to do the same. Foremost among those one would expect to find the industry’s biggest client, the government.
Now that would be good politics.