The UK Government has notified the Committee on Technical Barriers to Trade at the World Trade Organisation (WTO) of their intention to bring into force the Construction Products Regulations 2022. The document correspondence provides a useful update of the intent and focus of changes to the regulatory environment for construction products. GBR45_EN
The Building Safety Bill will carry the necessary legal changes
In correspondence with the World Trade Organisation the Department for Levelling Up, Housing and Communities (DLUHC) have advised WTO thar regulations will be made under the Building Safety Bill (once it has received Royal Assent) and will extend the existing regulatory framework to cover all construction products placed on the market in the UK. The existing regulatory framework for construction products, which derives from EU law, will remain in place for Great Britain (the EU regulatory regime for construction products will continue to apply in Northern Ireland as per the Northern Ireland Protocol). The regulation of safety critical products and the requirement for construction products to be safe will be extended to Northern Ireland.
DLUHC has also advised WTO that the intention of these regulations is to require that construction products placed on the UK market are safe, and can be used safely. It will do this by placing obligations on economic operators in the supply chain, including to carry out a risk assessment, provide customer information and to take corrective measures where necessary.
The Bill includes a power to create a statutory list of ‘safety critical’ construction product standards (where their failure would risk causing serious injury or death). The
regulations set out that manufacturers will be required to complete a declaration of performance, put in place factory production controls and follow the specified system of assessment and verification of constancy of performance to ensure that the claimed performance is consistently met. This will bring the regulation of these products in line with arrangements for products covered by the existing regulatory framework, including the affixation of a UKCA mark. Other economic operators in the supply chain will have obligations placed on them to support compliance with these requirements.
The overall aim is that regulations will strengthen the market surveillance and enforcement regime for construction products so that safety concerns can be identified and dealt with, and action can be taken against those who do not comply with the regulations. This includes powers to investigate, take civil action or prosecute economic operators for breaches in construction products regulations.
Grenfell has highlighted that “many construction products do not fall under a regulatory framework”.
DLUHC advise WTO that changes are necessary following the fatal fire at Grenfell Tower where it became apparent that many construction products do not fall under a regulatory framework. This means that regulators lack powers to act if certain products do not perform in the way they are claimed to, or if they are unsafe. The intent is to make sure that construction products fall under a proportionate regulatory regime that protects the public effectively from products that are not safe. To be effective, reforms must achieve their objective to ensure that products are safe, and can be used safely, in a way that is proportionate to the risk posed by the product. That is why the most stringent requirements (which are equivalent to the existing regulatory regime), including providing clear and accurate performance information, undertaking third-party conformity assessment (where required) and affixing the UKCA marking, will fall only on construction products deemed to be safety critical, where their failure would risk causing serious injury or death.
Other products which currently fall outside of clear regulatory requirements will be required to be safe before they can be placed on the market, aligning with the minimum standard required for consumer products. This broad outcome-based requirement to assess safety risks, rather than requiring specific standards will ensure that the reformed regime will enable rather than restrict market access for innovative products. A new national regulator for construction products will more effectively and proportionately enforce this reformed regulatory framework, improving the ability to remove non-compliant products from the market and to deter non-compliance. This will help to level the playing field between companies who follow best practice and who comply with the law, and those that try to seek a competitive advantage through non-compliance.
A full copy of this correspondence can be seen here.
A full summary of the Building Safety Bill written by FIS is available here
New guidance issued by the Department of Business Energy and Industrial Strategy means manufacturers and distributers can breath a bit of a sigh of release, but problems and a lack of clarity still prevail. New tighter guidance issued in November clearly states:
“An individual, fully manufactured good is placed on the market when it is first made available for distribution, consumption or use on the GB market (England, Scotland, and Wales) in the course of a commercial activity, whether in return for payment or free of charge. This requires an offer or agreement for the transfer of ownership, possession, or any other property right of an individual good, after the stage of manufacture is complete.”
The specific reference to distribution settles the ambiguity in this area created by previous advice, but there remain some areas of confusion, which individual businesses are asked to identify and refer to their trade body to discuss how legal opinion can be derived, this clarification is welcomed by FIS. The guidance goes on to cover other aspects of UKCA implementation guidance.
It has been confirmed through the Construction Leadership Council (CLC) Regulatory Alignment Working Group at a meeting attended by representatives of FIS this week, that the Department for Levelling Up, Housing and Communities’ (responsible for the regulation of construction products) is content that this guidance is consistent for construction products.
The guidance can be read in full here: UKCA Implementation Guidance (November 2021).
To support the publication of this guidance, BEIS are running a number of webinars to support the sector.
The CLC working group remains concerned about the following areas:
- Impending date for CA mark CE Mark transition to end versus state of readiness within the sector
- Can current UK Approved bodies and testing houses cope with all their retesting and certification work needed to implement the CA Mark
- When can historical data be used and when cannot it be used
- Potentially limiting and confusion in protocols for sub-contracting testing
- How are change can be implemented in existing long term contracts
- The definition of batches when it comes to transition dates
- Clarity over numerous issues related to the Northern Ireland protocol
- What happens with components of a CA marked products that could be CE marked and what happens when a component needs replacement
- The rules related to rebadging be used and how stock needs to be rebadged
- Whether and when will EU provide clearance for EOTA guidance to be used
- Clarity on whether the Secretary of State has to publish European Assessment Documents and guidance to support the UK Approved Bodies in issuing UKCA marking
To highlight the extent of these concerns the CLC has written to the Secretary of State – you can read the letter here.
The FIS Brexit Toolkit is available here
The Government has announced a package of measures to tackle the shortage of HGV drivers, which is causing widespread disruption across supply chains. It includes training 4,000 new drivers, offering 5,000 temporary visas for HGV drivers in the run up to Christmas, and using Ministry of Defence examiners to increase HGV testing capacity.
Build UK continues to work with the Chartered Institute of Procurement & Supply (CIPS) to publish up‐to‐date information on the availability of key construction materials. For the first time, each material has been RAG‐rated on price as well as availability, and timber and concrete are currently ‘red’ for both. Only cladding and paint are rated ‘green’ on availability and price.
To help members manage the contractual impact of a range of Brexit‐related issues, Build UK has worked with Wedlake Bell LLP to produce guidance on Your Contracts Post‐Brexit, which provides comprehensive advice on dealing with delays to time and programme, price and currency fluctuations, and sourcing materials and legal ownership.
On 29 September 2021, the UK government updated its information on Parallel Trade Between the UK and the EEA with regards to Intellectual Property. This can be viewed here.
The IP rights in goods placed on the UK market by, or with the consent of the right holder after the transition period may no longer be considered exhausted in the EEA. This means that businesses parallel exporting these IP-protected goods from the UK to the EEA might need the right holder’s consent.
The IP rights in goods placed on the EEA market by, or with the consent of the right holder after the transition period will continue to be considered exhausted in the UK. This means that parallel imports into the UK from the EEA will be unaffected.
The UK government is currently considering what the UK’s future IP exhaustion regime should be. The government ran a consultation for 12 weeks from June to August 2021 and is now carefully considering consultation responses. Once the analysis of consultation responses is complete, the government will make a decision and choose the option which best serves the UK economy, the UK public and the UK as a whole. We are aware that many businesses and consumers are interested on this matter so when that decision is made, we will work as quickly as possible to make an announcement.
It has been confirmed that the final transition to UKCA Marking from CE Marking will be delayed by 12 months allowing time for legislation to pass through Parliament, industry to prepare for change and the newly formed UK Approved Bodies to put in place the necessary processes to support the market.
Pressure has been mounting, not just from the construction sector, but the wider product manufacturing sector, that limitations related to mutuality of recognition have thrown up a number of practical challenges that could have prevented products being available from the 1st January 2022. A delay of the transition deadline to January 2023 has been rumoured, but was confirmed by Government yesterday that CE Marked products would still be able to be placed in the UK market for another 12 months.
Commenting on the delay, FIS CEO Iain McIlwee said:
“When we are already beset by shortages, to remove further uncertainty, at least for the short-term is good news – this announcement will give manufacturers more time to prepare, but also distribution to make decisions about stock. Concerns with the implementation of the UKCA Mark have dominated discussions of the Construction Leadership Council’s Regulatory Alignment Group over the past 12 months and I know the Construction Products Association have been taking these concerns forward to Government on our behalf. This delay is good news as it give us a but more time to prepare, but it doesn’t solve all the issues associated with Mutuality of Recognition and particularly the daft situation that manufacturers and suppliers will still need to re-test or assess products in a different geographical location for no reason other than politics. In the wake of a renewed focus on Building Safety and more rigorous testing regimes, it is potty to waste money and time and tie up vital and valuable testing time to tick political boxes.”
It should be remembered that no such extension is available to products being sent to the EU from the UK, where CE Mark, where necessary issued by an EU Notified Body according to EU Rules. This means UK Test reports will still not be recognised by the EU thus unilaterally invalidating all existing AVCP System 3 testing carried out in the UK and those for the future. These tests will need to be repeated at an EU-27 Notified Body. The announcement does not change the situation in Northern Ireland.
Visit the FIS Brexit Toolkit here
FIS Update on Shortages here