Building bridges: how Paul Morrell would fix our broken products testing system

Paul Morrell is one of construction’s heavy hitters. As the government’s first construction adviser from 2009 to 2012, he is credited with pushing through big reforms in public sector construction, including the roll-out of BIM (building information modelling) and billions of pounds of cost-savings.

He has since spent 10 more years as head of his own consultancy business specialising in, among other things, economics and procurement. And then, in April 2021, former housing secretary Robert Jenrick turned to Morrell when he needed somebody to head up a review of current systems for testing and regulating construction products.

Morrell’s eventual 174-page report published in April recommends sweeping reforms, including bringing all the construction materials on the market into the scope of the new National Regulator for Construction Products. His proposals are currently with ministers.

As he waits to see how they will respond, Morrell sits down with Building to explain his thinking about the difficulties of ensuring that construction products are tested effectively, an issue thrown into particular spotlight by the Grenfell Tower tragedy six years ago. Could Morrell’s thinking help inform recommendations under the Building the Future Commission’s building safety stream?

Despite his decades of experience, the 75-year-old industry veteran was still very surprised by some of what he found when carrying out research for his review, not least when it comes to the language around products. “Notwithstanding my great age and how long I’ve been in the industry, it was a completely foreign language to me, and I suspect it is to most people,” he says.

“If you said to an architect, ‘this AVCP (assessment and verification of constancy of performance) system then, how is it working?’ most of them will give you a blank stare.”

For Morrell, there are two “bubbles”, one made up of people who design, make and occupy buildings and one made up of those who set standards and test products. He says there is a “huge disconnect” between the two.

“This was demonstrated of course in the evidence of Grenfell, where people had a very low understanding of what the background of the product actually was – what you can assume and what you can’t assume. It showed how big a world it [construction products] is and how little it is understood by people who actually carry a liability for it.”

This goes to the heart of Morrell’s brief for his seminal products review: how do we ensure that the problems we saw at Grenfell, where different firms were unaware of products’ backgrounds, are not repeated? How do we ensure that claims about the safety of products are accurate and understood? How do we improve the testing regime?

And how do we come up with something that is not overly complex or prescriptive? After all, the products regime is complicated enough as it is.

Morrell is certainly fond of pointing out absurdities within the current system. “There is no UK system for testing products for safety,” he says.

“There is a European system of harmonised standards, and all the system does is confirm that the product complies with those standards. If it happens to be safe, good, but if it isn’t, we are at risk.”

You need to be reasonably confident that, when something arrives on site, it is what has been tested and it meets the claims that have been made

With a scoff, he says there are European standards for less contentious products such as bidets, but not for fire doors, where getting consensus across the continent is tricky.

Then there is the problem of the estimated 20,000 to 30,000 products that are unregulated altogether, which he hopes to bring under a “general safety requirement”.

Morrell, speaking to Building via a Teams call as part of our Building the Future Commission project to look at ways of improving the built environment, admits that the topic is huge and cannot submit to the “three-point solutions favoured by politicians”. Nevertheless he rapidly starts outlining six broad elements of an effective system.

First, he says we need standards that deliver what we want. “You may be familiar with the example of the concrete life jacket – you could make a perfect concrete life jacket but it wouldn’t be very useful. But what quality assurance tends to do is not check fitness for purpose, “ he says.

Nevertheless, he says we need standards and then a testing process that confirms compliance with the standard.

His next key element is that there should be a “chain of custody” – meaning instructions and safety information required for the use of a product are passed on in full from the manufacturer to the installer and then to the final customer.

“You need to be reasonably confident that, when something arrives on site, it is what has been tested and it meets the claims that have been made,” he says, adding that it is down to industry to work on the detail of this.

Next, Morrell says, there needs to be an “effective oversight and compliance system”. He suggests in his report that “regulatory clarity about a duty to act honestly, with any breach risking a significant sanction, should be welcomed by the majority of the industry – “and our consultations suggest that this would be the case”.

Going back to a conversation he had with a product manufacturer, he says there is a desire for regulators to “try enforcement first”, with the clear acknowledgment that it has been badly lacking up to now. “There has been no enforcement of the construction product regulations […] a system that has never been tested in that way, isn’t really a system at all,” he says.

The system that we are heading towards is more complicated than the previous one, with the potentially lethal gap between the product and its use, having two separate regulators and how you make a bridge [between the two] is a problem

Morrell says however that the government’s solution of setting up two regulators – with the Building Safety Regulator overseeing the design and management of buildings and the National Regulator for Construction Products – is potentially problematic unless action is taken. “The system that we are heading towards is more complicated than the previous one, with the potentially lethal gap between the product and its use. Having two separate regulators and how you make a bridge [between the two] is a problem.”

This idea of the need for a “bridge” between the two regulators is crucial, he says, because otherwise there will be a gap again between the manufacturers and those using the products in buildings. He says it is up to the regulators and industry to come up with a way of making this operate effectively.

“They need to demonstrate between them exactly how they will ensure that bridge works, so that the industry believes enforcement will be effective. Otherwise a product manufacturer will simply believe, once their product is on site, that it is no longer their issue.”

A key question, says Morrell, is at what stage do the regulators pick up a defective product. After all, products can sit on the shelf for a very long time before being used.

There needs to be “continuity of oversight from the products on the shelf, to the product arriving at the site, being put into the building and being maintained”. He says: “They are two good regulators, but I think their challenge is how to take a risk-based approach to how you follow a product through from start to finish.”

In passing, Morrell says that offsite manufacturing also presents a potential problem. “How do you satisfy yourself that the whole module delivered to the site is fit for purpose before it gets built? Whose job even is that?”

Another change he wants to see is an improvement in knowledge sharing and learning from mistakes. He suggests a “centre of excellence” could be a solution.

“There is no machinery for learning. I don’t see anywhere where we are collecting information together.”

He contrasts construction unfavourably with the aviation and marine industries, where accidents lead to detailed investigations and knowledge sharing. “It’s impressive how much trouble they take to find out what went wrong. They don’t usually settle for the first easy answer.” The same is needed in construction.

However, information on products can only really be shared if the products fall under the regulatory regime in the first place. And, with approximately two-thirds of product lines not covered, perhaps improving this state of affairs is the first priority.

Indeed the Building Safety Act proposes that all construction products are brought under the scope of a “general safety requirement”, and also that products which are not covered by the CPR should be brought into scope under new designated standards, or by being added to a list of “safety-critical” products.

The danger is that neither the general safety requirement nor “safety-critical”  products have yet been defined. Indeed Morrell recommends that the government publishes factsheets on the “interpretation, operation and enforcement” of these new requirements.

However he is clear that really it is up to the industry to come up with solutions. “My schtick is to say to the industry, you have new duties under the Building Safety Act, and you are going to have new duties again under secondary legislation about products. So how will you defend yourself against the allegation that you’ve failed to use reasonable skill and care in support of those duties?”

Using a duty-based system can remove the need for prescriptive processes from government, Morrell. “Why would anybody in Whitehall know what safe means in the context of a product?”

He says the industry should decide on what type of analysis to take before deciding what needs to be tested.

“We need to take charge of that front end – about what safe means, what the process of testing should look like, what the chain of custody should be – so that we are happy that the product that arrives on site is what it claims to be, then gets properly fixed and then properly maintained.”

Why would anybody in Whitehall know what safe means in the context of a product?

The government then needs to deal with market failures through enforcement, while the courts can decide if firms have used reasonable skill and care to meet their duty.

Another area in which the industry is expected to lead is through the administration of a the new Code for Construction Product Information. Administered by CPI Ltd, a body set up by the Construction Products Association, the code seeks to ensure that any claims made about products are backed up by clear and unambiguous evidence.

The aim is that clients, specifiers and users will insist on only working with CCPI-compliant products, as verified through the scheme. To date around 20 manufacturers are in the first wave of onboarding and verification. CPI will be launching a “supporters offer” for clients, specifiers and users in the coming months.

Those opposed to the code need to explain what is wrong with it and what they are doing instead, Morrell says. “There’s nothing very controversial in the code. If you won’t do that much [sign up] to make sure that a product is what it claims to be, is sold honestly and ensure what gets delivered to site has been tested and certified, what are you doing to keep people safe?”

He says the code will however have to be demonstrably trustworthy. “People need to sign up to it. I would hope that, when enough people have signed up, the government will make it a requirement in its own procurement,” he says.

Morrell is clear then that, as far as he is concerned, there is a huge onus on industry to sort out its own processes, get signed up to the CCPI and share knowledge to improve product safety. But is the desire there? Is the industry up for it?

The government must be clear how it is going to respond to this report and when, and the areas in which the industry can work on now, confident that it won’t have the rug pulled out from under its feet by an unexpected change in the regulatory environment

Morrell’s big fear currently is that, although the construction industry may be in the mood to play its part, some have been burned by the “horrible mess” of the UKCA mark U-turn. In December the government announced a two and a half year delay to the full roll-out of the post-Brexit construction product certification just two weeks before it was due to come into force.

Many firms had invested money in making changes “only to be told they shouldn’t have bothered”, says Morrell.

“Industry might take the line of thinking, ‘yes, we could look at what safe means and what we should do to guarantee the safety of our customers, but until the government tells us what its going to do, we might be wasting our time and money.”

The UKCA U-turn may also have reduced appetite to invest in testing. Morrell thinks this will reverse when demand increases, but his review calls for the governemnt to make it easier to use testing labs overseas.

Morrell believes that the will is there, but the industry needs a degree of certainty. He wrote to Clive Betts MP, the chair of the levelling up, housing and communities committee, last month to warn that a delay to the government’s response to his review could lead to a “freeze in progress that may otherwise be made by the industry in improving the safety of products”.

He says: “The government must be clear how it is going to respond to this report and when, and the areas in which the industry can work on now, confident that it won’t have the rug pulled out from under its feet by an unexpected change in the regulatory environment.”

Many, not least Building magazine’s Building the Future Commission, will now be awaiting the response from the government with more interest than ever.

See tomorrow for the second part of our interview with Paul Morrell, in which he reflects on his time as chief construction adviser to the government