Written evidence submitted by ROCKWOOL [BSB 332]
Introduction and summary of key considerations
ROCKWOOL welcomes the opportunity to respond to the HCLG Select Committee’s call for evidence on the draft Building Safety Bill. Our response is presented in two sections: in the first, we outline our responses to the questions of greatest relevance to ROCKWOOL’s expertise, whilst in the second we have suggested specific amendments to the text of the Bill in line with our recommendations in section one.
We are fully supportive of the Government’s policy objectives as outlined in the Explanatory Notes accompanying the draft Bill, particularly with regard to promoting greater accountability and responsibility for building safety throughout the lifecycle of buildings, and we welcome efforts to take the recommendations of the Hackitt Review forward.
In order to achieve these ambitions, we would welcome further information from Government in a number of key areas. In its current form, the draft Bill lacks several specifics that would aid more comprehensive parliamentary scrutiny, such as on the composition and functions of the proposed new Building Advisory Committee and the Committee on Industry Competence, the details of which are critical to ensuring the fitness for purpose and independence of the new regulator.
It is also our view that maintaining due process is imperative in order to remove the potential for any unscrutinised dilution of the measures over time. As such, we believe the degree of discretion that the Bill appears to provide the Secretary of State to amend or repeal the provisions concerning the above Committees requires careful examination.
Our submission also raises several considerations around construction products. In particular, we make recommendations in relation to product Declarations of Performance with a view to ensuring that clear information is provided on products’ reaction to fire properties. We further highlight the need for clarity on the degree to which ‘designated’ British and UK Technical Approval standards will accord with European harmonised standards going forward, as this has an important bearing on the continuity and use of standards in building safety. Finally, we detail concerns regarding the complexity of the new product safety enforcement regime, particularly with respect to local authorities’ capacity to manage the new responsibilities assigned to them by the draft Bill.
Section one: responses to the questions posed by the call for evidence
Question 1) How well does the Bill, as drafted, meet the Government’s own policy intentions?
The Government’s stated policy objectives are to “learn the lessons from the Grenfell Tower fire” and “to remedy the systemic issues identified by Dame Judith Hackitt by strengthening the whole regulatory system for building safety”. The Explanatory Notes further detail a secondary objective to provide “greater accountability and responsibility for fire and structural safety issues throughout the lifecycle of buildings in scope of the new regulatory regime for building safety”.
ROCKWOOL welcomes the focus on greater accountability and responsibility, which we hope will improve the safety of our buildings through better design, improved competency, appropriate use of materials and an enhanced focus on as-built quality. In order to address these issues, the new regulatory framework must be sufficiently robust and independent, and this should be enshrined within the new legislation as far as is possible.
In particular, we believe the Bill should include provisions to ensure that the Building Advisory Committee and the Committee on Industry Competence are only established after their composition has been scrutinised and approved by each of the Houses of Parliament, in order to ensure that their membership is sufficiently expert and independent. The activity of each committee should also be subject to regular scrutiny by the relevant Select Committee, as well as the Building Safety Regulator.
It is also our view that the powers afforded to the Secretary of State to amend or repeal the provisions on specific committees – including the functions of those committees – could inadvertently lead to unscrutinised dilution of the measures over time. As such, we believe it is imperative to maintain due Parliamentary process and our draft Bill amendments (Suggested Amendments, 1) reflect this recommendation.
Question 2) Does the draft Bill establish an appropriate scope for the new regulatory system?
We believe the Government’s proposed structure for a new regulator and accompanying committees has greater potential to ensure safeguards and eliminate undue industry influence than the current system. However, we would welcome further details in a number of areas in order to enable greater Parliamentary scrutiny of the proposals. This includes in relation to the composition of the Building Advisory Committee and the Committee on Industry Competence, as well as the powers of the Secretary of State, as highlighted in our response to Question 1.
Further, it is vital that the regulatory framework is sufficiently comprehensive and in this regard, ROCKWOOL believes the Building Safety Regulator must have the power to provide oversight to all high-rise and high-risk buildings. In particular, this should include compliance with building material requirements for:
The Government should seek to amend relevant legislation – including the Building Safety Bill – in order to achieve this.
Question 3) Will the Bill provide for a robust – and realistic – system of accountability for those responsible for building safety? Are the sanctions on those who do not meet their responsibilities strong enough?
Accountability
In order to ensure a robust system of accountability for the installation of materials on site, the Bill must provide further clarity on its proposed assessment of competence. In particular, the Bill should clarify which parties will be tasked with assessing the evidence provided by an individual to show that they are competent, and how it will be determined that the checker of this evidence is themself competent and knowledgeable about building safety issues.
As a further point of consideration, we believe the provisions on the registration of high-risk buildings should be strengthened. As detailed in Section 63 of the draft Bill, “The accountable person for a higher-risk building may make an application to the regulator to register the building” – or alternatively, “The regulator may register the building” [our emphases]. In our view, this should be strengthened to a mandatory legal requirement in order to support greater accountability and safety.
Further, in its current form, the draft legislation states the register will be published “in such manner as [the regulator] considers appropriate”. We would encourage Parliament to ensure that the Bill mandates annual publication of the register in order to ensure the timely provision of information to Parliament and the public. Our draft amendments (Suggested Amendments, 2) reflect these recommendations.
Sanctions
With regard to sanctions, Section 29 of the draft Bill states that it is “an offence if [a person provides] false or misleading information to the regulator… and the person knows that, or is reckless as to whether, the information is false or misleading”.
It is our view that the Bill should expand its definition of “reckless” behaviour to support a clear understanding of expectations and responsibilities within the design and build process. For example, there must be no room for senior decision-makers to abdicate responsibility based on a lack of awareness about key facts such as the fire safety properties of construction materials.
The Bill should therefore provide for sanctions where it is reasonable to expect that a person should have knowledge of whether information is false or misleading, based on their position of responsibility and professional training. Our draft amendments (Suggested Amendments, 3) reflect this recommendation.
Question 4) Will the Bill provide strong mechanisms to ensure residents are listened to when they have concerns about their building’s safety?
We defer to residents and experts in this field to determine whether the mechanisms around access to information and dialogue are sufficiently robust. However, as highlighted in previous submissions to Government consultations, ROCKWOOL welcomes measures taken by the Government to provide much-improved information on fire safety to residents, including in relation to critical roles and responsibilities. Similarly, ROCKWOOL welcomes the proposed duties and functions of building safety managers that are set out in the Building Safety Bill and it is imperative that these managers engage meaningfully with residents and occupants.
Question 5) Is the Government right to propose a new Building Safety Charge? Does the bill introduce sufficient protections to ensure that leaseholders do not face excessive charges and that their funds are properly managed?
We defer to residents and experts in this field with regards to leaseholder fund management. However, it is clear that the financial cost and distress being borne by leaseholders in unsafe buildings must be addressed urgently by the Government and we do not believe this Bill solves the issue of the excessive charges facing thousands of people trapped in this situation.
Question 6) Does the Bill improve the product testing regime in a way that will command the full confidence of the sector?
In its current form, we do not believe the draft Bill improves the product testing regime sufficiently to command the full confidence of the sector.
Safety-critical products
We believe that the Bill should provide greater clarity around standards for the oversight of construction products. At present, the draft Bill focuses on a definition of “safety-critical products”, identifying these as construction products where “in the view of the Secretary of State, any failure of the product would risk causing death or serious injury to any person”. The Bill provides the Secretary of State with a high degree of discretion in terms of the inclusion (or not) of safety-critical products on the list and the commissioning of new products standards with regard to safety-critical products, with little oversight outside of consultation.
We believe that the Government should require Declarations of Performance (DoPs) for all construction products to include ‘Essential Characteristics’, such as the thermal performance characteristics of insulation products. This will ensure that clear information is provided for the most important material properties.
Further, it should be made mandatory for all construction products sold in the UK to include Euroclass Reaction to Fire ratings in their Declarations of Performance. It should not be permissible to declare ‘No Performance Determined’ (NPD) in these declarations, especially for, but not limited to, safety critical products. Additionally, regulations should move as soon as technically possible to require the provision of information on the emission of toxic fire gases and smoke in the DoPs of all construction products.
Another important factor to consider in definitions of “safety-critical” requirements is the risk of sub-par installation, which may create real-world safety risks even if the product meets academic standards.
Finally, the Bill must further clarify its competence requirements for the installation of materials on-site. Given the risk to human life posed by the failure of “safety-critical” products, the Bill should be amended to clarify requirements designed to ensure that parties installing such materials are competent.
Critical risk
The draft bill defines ‘critical risk’ as a significant risk of death or serious injury arising from a building safety risk. It does not extend to include the protection of property. Whilst it is right and proper that the bill prioritises the protection of life, this sole focus does not account for the full social, environmental and economic costs of fires. This focus further leads to a higher tolerance of fire risk, on the grounds that everyone will be able to evacuate premises safely. There is however a significant risk to life if a building is on fire, even if it has strong evacuation procedures.
Prioritising the protection of property as well as life reduces both the risk to life and the risk to property. If measures are taken to protect property from fire, for example by requiring the use of non-combustible materials and sprinklers, this will self-evidently reduce the risk to both property and life.
Fires that destroy buildings have significant costs that regulations should strive to reduce. The loss of residential housing renders people homeless, disrupts children’s education, increases stress and adversely affects the mental health of residents. In many cases, the provision of care for children and other dependents is disrupted, leading to difficulties for family members to maintain work routines or search for employment. The loss of school and hospital premises contributes to the disruption of children’s education and patient care, as well as to broader financial costs for institutions and social costs for parents and families.
Building fires also seriously damage the environment, contaminating affect air, water, and soil. Smoke and gases from a building fire contain toxic contaminants produced by the combustible elements of the building and its contents. Many construction products are manufactured from synthetic plastics and polymers that release harmful chemicals into the air and soil during a fire.
Chemicals and other materials stored in a building may add to this harmful cocktail. Additionally, runoff from sprinklers and firefighting hoses contaminates soil and ground water, and can pollute water courses and their ecology. Whilst the short-term, visible impacts of a building fire such as smoke and debris are immediately apparent, the long-term impacts on human health, ecology, soil and water are not felt immediately but are nonetheless potentially extremely harmful.
Building fires can also severely impact businesses that are located in the building damaged, as well as those in the surrounding area.
It is apparent that the loss of buildings of all types has the potential to cause not only direct financial loss but also disruption to local services and businesses, social harm and environmental damage. We therefore strongly believe that the scope of ‘critical risk’ should be expanded to include protection of property.
Harmonisation of standards
The Government should clarify the degree to which ‘designated’ British and UK Technical Approval standards will accord with European harmonised EN standards and European Technical Approvals (ETA) following the end of the Brexit withdrawal period and the enactment of the Building Safety Bill.
The Explanatory Notes to the Bill state:
“Designated products currently fall under existing EU harmonised standards, and in the future designated products can be added under new EU harmonised standards, where the Secretary of State chooses to add them. These products are subject to the existing regulatory regime derived from EU law. Going forward, now we have 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.” (Explanatory Notes to the Draft Bill, paragraph 964 – emphasis added.)
ROCKWOOL firmly believes that British standards should mirror European product standards, in order to reduce complexity, ensure continuity of standards and building safety practices, and prevent any misinterpretation of standards or friction in the cross-border manufacture, supply, or implementation of safe building materials. Whilst it has been stated that harmonised European Standards (hENs) will become designated British Standards, it is not clear whether this will also be the case with European Technical Assessments (ETAs) and European Assessment Documents (EADs). It is only implied in Schedule 8 that ETAs will become designated UK Technical Assessments (UKTAs).
Furthermore, we are concerned that safety critical products covered by ETAs would be exempt from UKCA certification requirements. Our concerns arise because the EU Construction Products Regulation does not require products covered by ETAs (i.e. not covered by hENs) to be CE-marked. By extension, the UK Products Regulation would not require UKCA-marking. Therefore, whilst we support the adoption of ETAs as UKTAs, where UKTAs are applicable to safety critical products, it should be mandated that these products are subject to further performance requirements and to UKCA marking requirements, comparable with products covered by hENs.
Many passive fire protection products are also covered by ETAs but not harmonised European standards. In addition, the Bill gives the Secretary of State wide-ranging powers to create a new regime which could mean UK standards fall below those of the European harmonised standards.
Declarations of Performance
Declarations of Performance are a key tool in creating better transparency with regard to the performance of specific products. However, there is currently no consistency in terms of the information presented within DoPs. To align with the goal of providing greater clarity in the product testing regime, the Government should explicitly define in the legislation what information must be included in a product’s DoP. ROCKWOOL suggests that the Bill should contain a set of minimum requirements which should include essential information. In particular:
Amending the draft Building Safety Bill to include these requirements would allow consistency with EU DoPs to be maintained, placing these requirements within building regulation requirements, rather than the product rules for UKCA marks. Our amendments (Suggested Amendments, 4) reflect these recommendations.
Clarification of position of the Constructions Products Regulator
We would ask the Government to clarify the regulatory position of the Construction Products Regulator, which is not mentioned in the draft Bill.
Ability of Trading Standard to investigate compliance claims
The draft Bill provides that the Secretary of State will have the power to create market surveillance and enforcement powers, including monitoring, assessment and verification of product performance, including sample testing, the marking or packaging of products, or product withdrawal. The relevant authority will be a local authority, the Secretary of State or other Minister of the Crown (Schedule 8, 18), and paragraphs 974-976 of the Explanatory Notes to the Bill explain that enforcement powers will be provided to “appropriate authorities (for example, Trading Standards)”.
ROCKWOOL is concerned about the ability of Trading Standards to investigate compliance with claims, in terms of both specialist expertise and capacity with existing resources. The Government should clarify how it will resource these extra powers and ensure that local authorities have the relevant expertise to fulfil this responsibility.
Question 8) Does the Bill present an opportunity to address other building safety issues, such as requirements for sprinkler systems?
It is vital that the regulatory framework created by the Building Safety Bill is sufficiently comprehensive and we believe the Building Safety Regulator must have the power to provide oversight to all high-rise and high-risk buildings. In particular, this should include compliance with building material requirements for:
The Government should seek to amend relevant legislation – including the Building Safety Bill – in order to achieve this.
Section two: Suggested amendments to the Building Safety Bill
Our suggested amendments to the draft Bill are as follows.
1) Specifying criteria for committee membership:
2) Mandating building owners to register higher risk buildings and annual publication of the register
3) Adding “reasonable expectation” with regard to the provision of false or misleading information to the regulator
4) Specifying information to be provided within Declarations of Performance (DoPs), which describes how a material behaves in relation to fire and other characteristics, should contain: