EU Referendum

Brexit: maintaining convergence


Those who venture off the beaten track, looking for alternatives to the failing legacy media may happen on the UK offshoot of BuzzFeed, the US internet media company, which takes as its mission the provision of "the most shareable breaking news, original reporting, entertainment, and video".

But it says a great deal about the way this country is governed that, when this media company sought to identify, "the complex web of companies and government agencies facing questions over the Grenfell tragedy", it makes just as big a mess of its explanation as the media it seeks to replace.

Publishing an interactive chart purporting to show all the key players – and their inter-relationships – the key features are not the information given but the most notable omissions. While you get a link to the Building Research Establishment (BRE, but now BRE Global), there is no reference to the British Standard Institute (BSI), to CEN/CENELEC – the European standards body - or the European Commission.

But even if these have been included, the list would not be complete. There should also be included other official bodies such as the European Organisation for Technical Approvals (EOTA), the Standing Committee on Construction (SCC) – part of the Comitology system and not to be confused with the Advisory Group on Construction Products - the Fire Regulators Group, and the Group of Notified Bodies.

All of these bodies played roles in the events which led to the Grenfell fire – some major and some minor. There is also the European Court of Justice, which in April 2013 ruled that the Federal Republic of Germany had breached EU law in requiring additional approvals for construction products, over and above those set under the (then) Construction Products Directive.

But all of this passes BuzzFeed by. As far as it is concerned, it is the BRE which "sets standards and upholds building standards while influencing building regulations". Also, we learn, "its tests are the ones that set the fire ratings for the products used in Grenfell".

The errors here would be obvious to those who have read the relevant threads on this blog, but if it is this which represents the perceived wisdom, then we have a serious problem. Crucially, though, if that is the general understanding, then one has point to yet another potential difficulty for our Brexit negotiators.

The point is that, if no-one in the UK actually understands how the product approval system actually works, it is very difficult to negotiate a continuum. And without that, as we launch off on our own path, how then do we ensure that we maintain the regulatory convergence necessary to secure access to the markets of the EU Member States?

Already, the government is getting itself into a terrible mess. In a knee-jerk reaction to the Grenfell Tower fire, it has been insisting on testing all the Aluminium Composite Panels (ACP) – such as Reynobond PE – used in high rise buildings.

But, rather than test to the EU harmonised classification, using EN 13501 and the Single Burning Item (SBI) test, it has chosen a different route. While the EN test is applied to intact panels and measures flame spread, the government has asked the BRE to test what calls the "filler" in these panels to ascertain whether or not it meets an entirely separate requirement for "limited combustibility".

A letter from the Department of Communities states that, on buildings with a floor over 18m above ground level, where ACM panels are identified, the "core material should be a material of limited combustibility or Class A2.1" in order to comply with Building Regulations.

Compounding the error is its panel of experts, which asserts that the procedure "is in line with the requirement of the Building Regulations guidance". And, on that basis, it declares that, if the panel core fails the test, the building owner should cause to be undertaken a laborious fire assessment and take action on the basis of its findings.

As aside, the experts do not recommend automatic removal of the cladding, although this can be a consequence of the fire assessment, and a number of local authorities are removing cladding from high-rise blocks.

However, other experts, though, are questioning the whole process. Says Stephen Mackenzie, a fire risk consultant: "The government is fundamentally flawed in its use of the BRE to conduct overly simplistic and limited fire test samples and not the complete cladding assembly". He adds: "The small scale tests on external panels need to be extended to a full disassembly".

Additionally – amongst other critical voices – an architect responsible for some of the projects where cladding has been ruled to have failed has asked: "What are they testing to what standard? This could be a massively costly and disruptive error to thousands of residents".  

The error itself seems to stem from a misreading of Approved Document B (Volume 2), where Section 12.7 on "Insulation Materials/Products" requires of a building with a storey 18 metres or more above ground level, that "any insulation product, filler material (not including gaskets, sealants and similar) etc. used in external wall construction should be of limited combustibility".

Where the expert panel and the Department of Communities are going wrong is in interpreting the core materials in Reynobond PE (and similar products) as insulating material.

In fact, as one of several Reynobond brochures indicate, Reynobond PE is a laminated product. The polyethylene core "adds strength and rigidity to the coil-coated aluminium panels", thus maximising "its flexibility and formability, while maintaining a light weight for easy installation".

While the polyethylene has low thermal transmission characteristics, this is entirely incidental to the functioning of this product, which is to add "strength and rigidity". There is no reference to insulation and no claims are made for the product in this respect – which is hardly surprising as the core thickness is only 2mm – compared with the 150mm of Celotex which has been found to be "more inflammable than the cladding".

Clearly, if Reynobond PE is neither marketed nor used as an insulation material or product, Section 12.7 cannot apply. As the UK Approved Document otherwise permits surface materials to be used if they conform with the Class 0 National Standard – equivalent to class B of EN 13510 – then by requiring additional testing for "combustibility", the UK government is potentially in breach of EU law.

What is clearly confusing people (and has been extremely difficult to work out) is explained in a COM(2016) 445 final, a report published in July last year, on the functioning of the Construction Products Regulation.

Unlike the more usual harmonised standards, it says, the construction standards "are expected only to outline the methods and criteria for assessing the performance of construction products in relation to their essential characteristics". In general, the report adds, "they are not setting requirements for products' performance itself".

Essentially, this refers to what the Commission itself days is the "division of powers between the EU and Member States". The EU, it says, deals with the single market access rules. The Member States are responsible for safety, environmental and energy requirements applicable to construction works.

If that can be taken as a baseline (and I'm not sure it can be taken entirely at face value), then it does help clarify issues. In respect of fire safety, for instance, the Member States decide on the standard required, while the EU decides how that standard shall be met in terms of the product testing procedures.

Thus, if the UK government decides on - in this case – flame resistance standard, it cannot then decide to assess conformity with that standard by applying a combustibility test. Nor, for that matter, where the EU specified the Single Burning Item (SBI) test, via EN 13501, the Member State cannot then require a system test (as in BS 8414) as a mandatory additional requirement.

But, with cladding having failed the combustibility test in over 180 buildings , the government seems intent on compounding its error by applying additional tests, based on BS8414.

The results of these tests, which are to be carried out by BRS, are supposed to "help landlords make decisions on any further measures that may need to be put in place to make their buildings safe following the Grenfell Tower fire". But, if BS8414 is used as the decision criterion for cladding safety, the UK will – on the face of it – most definitely be in breach of EU law.  Ironically, that the UK did not breach this law in the first place was the proximate cause of the disaster.

Interestingly, in events such as these, the Commission is usually quick off the mark with proposals to improve safety and, as we already know, it has a contract in place (partly executed by BRE Global) to develop "a European approach to assess the fire performance of facades". Not only is it strangely silent on this, nothing is being said about the UK running a cart and horse through EU law – although Brexit is undoubtedly partially responsible.

The crucial point, though, is that – if the UK government can't even secure regulatory convergence on this one issue, while we are still in the EU, where do we see it going with 318 committees on the comitology register, with thousands of meetings to monitor and tens of thousands of laws and standards with which to maintain convergence?

The idea that the UK can slot in with a "bold and ambitious" trade agreement that covers all these bases looks more and more absurd by the day.