“To what extent does Construction Professionalism require external regulation, and how is this usefully implemented?”

Professionalism is the process by which practitioners of a particular trade are formed into “self-regulating associations of experts who have an interest in maintaining quality and who will peer review and police one another’s activities to ensure high standards are maintained”.[1] Its primary proposition is to ensure a consistently high level of service by regulating the performance of its members. It achieves this through systems of self-regulation, such as exercising control over who is permitted membership to the group (known as occupational closure), and defining codes of practice which enshrine what is considered professional behaviour. Each profession is bounded by a professional body: Nigel Ostime lists twenty of these as ‘key’ professional organisations in his book, the Architects’ Handbook of Practice Management.[2]

Nominally, these arrangements benefit everyone involved. Clients engage in less risk by appointing a professional party, not only because they are bound by codes of practice, which set out the principles of what is considered professional practice, but also because most professional organisations in the construction industry require their members to have adequate professional indemnity insurance. Practitioners in turn have their professional interests represented, and receive a range of other benefits such as centralised knowledge sharing, formalised education, visibility, status, and guarantees to exclusivity over a particular territory.[3]

But to what extent can we trust the process of professionalism to be self-regulating? How do we ensure that it lives up to its proposition, and does not take advantage of the position it occupies? The Grenfell Tower Fire in June 2017, which led to the loss of the lives of seventy-two people, and displaced hundreds more, has demonstrated that professionals do not always act in accordance with the proposition which professionalism sets out. The fire, and the inquiry which runs in its aftermath, have highlighted numerous instances of malpractice which went unnoticed, or were ignored, in the years preceding the fire. These examples question how much we can believe in professionalism’s proposition to self-regulate.

According to Simon Foxell in Professionalism for the Built Environment, the original conception of professionalism in Britain was of something separated as far as possible from the Capitalist system, an idea “grounded in the belief that the temptation of additional earnings should not have an influence on critical judgements and decisions on behalf of society”, and that “The independent application of expertise and knowledge should not be, or perceived to be, compromised by financial factors.”[4] This is at odds with its present condition. Since the 1980s, construction professionalism has come under pressure from both the private and public sectors to become more entrepreneurial, more willing to take risks, and more value-driven, a phenomenon Eliot Freidson describes as the ‘assault on the professions’.[5]

At the same time as the separation between professionalism and market influence has been put under increasing pressure, the growing use of procurement methods such as Design and Build contracts has led to the increased specialisation and division of various design professions. These contracts centralise power in the form of a lead contractor, who divides the work into packages which are then subcontracted. The advantages of this method are supposedly to increase operational efficiency, and to offer greater value to clients by enabling work, and its accompanying risks, to be distributed between multiple parties. It also supposedly reduces the need for external monitoring due to there being a single point of responsibility (the lead contractor). As Richard Saxon has stated, “contractors have sold the idea that their internal quality systems avoid the need for external supervision. Recent abject failures suggest that these quality systems are not all working”.[6]

Indeed, the evidence from the ongoing Grenfell inquiry suggests that these claims are not always fulfilled. The inquiry has heard a range of situations in which professionals failed to demonstrate professional standards. These examples range from incorrectly installed cavity barriers, which failed to stop fire from spreading,[7] to combustible products being sold despite having failed fire tests.[8] The refurbishment of the tower took place between 2015–2016. Part of this involved the installation of a new aluminium composite rainscreen cladding. A flammable form of this cladding was chosen over a fire resistant one in order to reduce the budget by around £300,000.[9]

A major criticism made in the inquiry was of the contractor Rydon’s hands-off approach to overseeing the quality of the work done. Giving evidence in the inquiry, Simon Lawrence, Rydon’s Contract Manager at the time, explained that Rydon was generally not involved in overseeing work unless a particular dispute or concern was brought to their attention, and that they relied on third parties such as specialists and designers to ensure the statutory compliance of materials, without subsequently checking that work. [10] This led to situations where work was being released without having been subject to checks that it was compliant. For instance, it was found that the façade consultant had marked cladding drawings as ‘approved for construction’ before they had even been seen by the Architect.[11] Drawings subsequently marked by the Architect Studio E were found to contain a host of serious errors, such as a different type of cladding being specified to the one which was actually used.[12]

Rydon’s role as main contractor in the Design and Build contract meant that it was ultimately responsible for the quality of the finished work. The evidence from the ongoing inquiry demonstrates that it believed it was able to delegate this responsibility to the subcontractors, and even uncontracted building regulators. Yet it is unclear who Rydon believed took on ultimate responsibility for ensuring quality, if it were not them. Richard Millett QC, lead counsel to the inquiry, pointed out that “by laying off to trusted subcontractors the job of ensuring that all designs complied with statutory requirements, and [given that]…Rydon had no means of supervising or checking that the work had been done properly, Rydon was assuming a risk of non-compliance and therefore [was in] breach of contract with the TMO [Tenant Management Organisation].”[13]

In light of the clear sense of confusion surrounding quality control processes by Rydon, how seriously can we take the reassurance that professional groups, and the modern procurement routes they use, can be trusted to be self-sufficient in holding themselves accountable? Foxell argues that the increased use of Design and Build contracts has stripped many professionals of their ability to arbitrate and oversee during the design process, by creating distance between them and clients. This condition, he describes, leaves “professionalism weaker and less able to intervene”.[14] This could be argued for subcontractors in the project, such as Studio E and Harley Facades, but as lead contractor Rydon was in direct contact with the client, KCTMO, and if it was unable to intervene, it was only through a wilful resignation of agency.[15]

The way in which the Government attempted to manage the aftermath of the fire demonstrates the importance of selecting an appropriate way in which to regulate. In the following three months after the fire (mid June-early September 2017) the Government carried out a range of combustibility tests on the ACM (Aluminium Composite Material) panels used on Grenfell, as well as other similar cladding samples. These tests found that an overwhelming number of the samples tested failed fire testing targets which, previously, they had officially passed. As of July 2018, there were known to be 474 residential buildings with ACM cladding, of which 301 were private buildings. The primary conclusion of these tests was that the buildings which used this unsafe cladding required remediation work to replace it with safe alternatives.[16]

The question of who is liable for the cost of this replacement became contentious in the realm of private housing.[17] Over subsequent years the Government expressed the importance for owners of such buildings to pursue, wherever possible, the professionals who installed the original cladding, and to recover costs from them, rather than leaving the cost to their leaseholders.[18] Trade bodies such as the National Housing Federation, however, fought against this. David Orr, the then-CEO of the NHF, argued that “As freeholders of leasehold properties, our members have legal responsibilities as part of their leases and are therefore legally entitled to recoup the reasonable[19] costs through service charges.”[20] Despite the Government’s insistence of the moral duty of freeholders to ‘do the right thing’, the professionals who provided the cladding were largely left alone. Instead, building owners responded either with inaction, or else by placing remediation costs onto leaseholders[21] — with many facing bills of thousands of pounds for charges relating to the replacement of cladding, or seemingly permanent ‘temporary’ safety measures such as ‘waking watch’ patrols. [22] [23]

The process of replacing cladding on private buildings was exceptionally slow compared to as it was on public blocks. By the end of June 2018 fewer than 10% of privately owned residential blocks with unsafe cladding had begun any kind of remediation work, compared to around 60% of socially rented blocks.[24] Progress on this front only began to take place when the Government initiated a combination of major grants, as well as punitive measures, such as threats to ‘name and shame’ those not complying, imposing fines, and potentially excluding freeholders from other Government funding programs. Doubt was cast over whether this last threat was actually legal: in a July 2018 report the HCLGC (Housing Communities and Local Government Select Committee) indicated a lack of clarity about opportunities for intervention open to the overnment, calling the leasehold/freehold arrangements a “difficult and complex legal situation”, and describing current guidance for external surfaces as ambiguous.[25] It was only on 29th November 2018, over a year since the initial testing, that councils were given the legal right to strip combustible materials from private properties and charge landlords. The Government’s latest measures, enshrined in the Building Safety Bill, include the release of an additional £1.6bn of funding for private high rise blocks who had not yet begun works, amongst other things, as well as promises of a new regulator, and tougher laws, including a requirement for Architects to undertake regular fire safety training.[26] While these look set to encourage further (if reluctant) progress, they primarily engage with the immediate, and urgent problem of replacing cladding. But this is not the same as suggesting that these measures address the broader structural question at hand, which is why the professions responsible for sourcing and installing these unsafe cladding systems in the first place have, by and large, not been held accountable.

While it is clear from the example of Grenfell that there are instances in which professional bodies do not live up to their standards when operating independently, it appears equally true that Government intervention in and of itself does not necessarily help, and that, in spite of the Government’s insistence, much of the responsibility for remediation still falls on the public: if not directly in the costs faced by leaseholders then in the cost to the taxpayer, in terms of the public money used to remedy the mistakes of professionals. Primarily responding to the political pressure of a timely response, their main reaction has been to simply foot the bill. While this looks to be finally easing the deadlock of freeholder inaction, it does not provide clarity on why the professionals who installed the cladding in the first place appear to have largely been excused from claims, nor does it ask the question of how unsafe ACM panelling was able to be deployed on such a large scale. If it were the case that this cladding was only installed on a few projects, it might be reasonable to explain it as the professional failings of certain individuals. But when its use is so widespread — posing a risk to thousands of leaseholders — we must ask broader questions of the robustness of contemporary construction professionalism.

The changes to professional indemnity (PI) policies in the wake of Grenfell raise important points about the value which can be offered by external regulation. Professional indemnity is a sum of money paid by one party (the indemnitor, typically an insurance company) to another (the indemnitee, the person who takes out the insurance policy), to cover them for actions they have committed which have been found liable for a claim in court. By ensuring that the indemnitee is able to pay damages in a potential claim, it reduces the degree of uncertainty surrounding their professional practice. Most professional bodies require their members to have some form of PI insurance, as the construction industry can involve claims of an amount far greater than most companies’ individual budgets can cover.

In the wake of the Grenfell fire, there have been widespread changes to a large number of PI policies, many of whom have applied blanket exemptions for any claim which involves fire, similar types of cladding, or even similar typologies to Grenfell. Many of the insurers who do still offer cover have raised their premiums significantly. This has caused difficulty to professionals, many of whom have struggled to find, or afford, adequate cover for their practice, potentially leading to situations where they are forced to do work which is not covered.[27] [28] It has been suggested that these changes will further slow efforts to provide sufficient new housing stock.[29] For these reasons the changes have been of great concern to those in the construction profession. Analysts explain that the reason for these changes is the increased amount of uncertainty posed by these project types, in light of the Government’s finding that Building Regulations were inadequate.[30] As Judith Hackitt has commented, “With PI cover, part of the current problem lies in lack of clarity about who is responsible for what.”[31] PI companies must ultimately protect their economic self-interest, and when these standards, which constitute the benchmark against which PI policies are constructed have been called into question — especially given the severity of the fire — there is little incentive for companies to continue offering the same cover.

This example illustrates the importance of professional indemnity insurance to construction professionals, and the importance of a series of defined regulations to the insurance market. Critically, it highlights the dependency of construction professions on other professional groups, such as underwriters, for its regulation. Professional indemnity plays too important a role in managing financial risk in the industry to claim that it could be achieved effectively without the specialised knowledge of insurance professionals. This fact challenges how realistic it is to attempt to consider professionalism as self-sufficient, especially when the laws and statutory frameworks on which much of its codes of practice and PI policies are based are designed at a policy-based, rather than professional level.

How do we make sense, then, of these three examples surrounding Grenfell, in light of the questions surrounding the regulation of professionalism?

Simon Foxell argues that institutional energy has been a balancing force in professionalism’s dance between public service and economic self-interest, asserting that the reduction in public regulation “has shredded many of the core values of professionalism and a course corrective is, as a result, long overdue. The experience of the Grenfell Tower fire, if nothing else, teaches us that.”[32] Indeed, in all three examples, from value-engineering decisions, to cladding remediation, and to the changes in PI policies in the wake of Grenfell, we see how much of an impact the effective regulation, or lack thereof, makes in the delivery of professionalism’s proposition.

But do these examples mean that professionalism cannot function well without external regulation, and that public regulation is essential? And if, as Foxell states, Grenfell illustrates the ‘shredding’ of professional values, in what ways might we reconceptualise what a regulated professionalism is, and how it operates? Before jumping to the specious argument that government regulation will solve professionalism’s conundrum, it should be remembered that attempts at public regulation also brought problems alongside its solutions, as well as ignoring a number of present ones — principally because of how that intervention was managed. For instance, the Government’s quiet insistence on a ‘moral duty’ for freeholders to pay for cladding remediation appeared to make little impact, but equally its disciplinary approach was not aimed enough at the professionals themselves to be of wider structural effect. It is clearly the case, however, that with the set-up of current procurement systems, and the ever present influence from the market, there will always be a pressure on professionalism to compromise on its standards.

In The Rise of Professionalism, Margali Sarfatti Larson makes the criticism that professions, once established, develop inwardly rather than outwardly.[33] The modern design process, whose growing number of agents are increasingly entangled with one another, cannot hope to maintain a sense of separation as clear as it was in professionalism’s early conception. If we might attempt to summarise important lessons from the three examples discussed relating to the Grenfell Tower fire, one might be that considerations which are often framed as being merely questions of professional economy have very real, and very definite human consequences. In our remembering of the aims and intentions of professionalism, and our reimagination of how we may better regulate it, let us ensure we do not lose sight of those for whom it is ultimately designed.

[1] Foxell, Simon. “Professionalism for the Built Environment”. Routledge, 2019, p2.

[2] Ostime, Nigel. “Handbook of Practice Management”. 9th ed., RIBA Publishing, 2019, pp21–25.

[3] Foxell, p2.

[4] Foxell, p2.

[5] Freidson, Eliot. “The Third Logic”. 2001. Quoted in Foxell 12.

[6] Saxon, Richard. “How Might Grenfell Change the Contract Scene?” 4 July 2018, [www.building.co.uk/comment/how-might-grenfell-change-the-contract-scene/5094428.article].

[7] “Grenfell Tower Inquiry: 11 Key Things We’ve Learned This Year.” BBC News, 23 Dec. 2020, [www.bbc.com/news/uk-55349395].

[8] “Grenfell: New Body to Ban Dangerous Building Materials after Inquiry.” BBC News, 19 Jan. 2021, [www.bbc.com/news/uk-55722159].

[9] As of 2019, the total cost to the public of the inquiry has been at least £40m. (See Booth). Political pressure appears to have been a factor in the widespread value-engineering applied to the project. A 2017 email from the KCTMO mentioned the need for “good costs for Cllr Fielding Mellen [the council’s former deputy leader]”.

[10] Hopkirk, Elizabeth. “Grenfell Façade Designer Marked Drawings ‘Approved for Construction’ When They Weren’t.” Building Design, [www.bdonline.co.uk/news/grenfell-facade-designer-marked-drawings-approved-for-construction-when-they-werent/5107128.article]. Accessed 24 Jan. 2021.

[11] Ibid.

[12] Kelly, Megan. “Grenfell Designs Approved ‘without Being Seen by Architect or Contractor.’’ Construction News, 20 July 2020, [www.constructionnews.co.uk/health-and-safety/grenfell-designs-approved-without-being-seen-by-architect-or-contractor-20-07-2020/].

[13] Hopkirk.

[14] Foxell, 18.

[15] The dispute about responsibility extends to the inquiry. At the start of the Phase 2 inquiry, the Lead Counsel Richard Millett QC criticised core participants for the way in which they had given evidence in Phase 1 of the inquiry, saying that if the public were to believe each of their “carefully crafted statements”, they “would be forced to conclude that everyone involved in the refurbishment of Grenfell Tower did what they were supposed to do and nobody made any serious or causative mistakes.” With one exception, each statement by members of the design team argued that they had simply carried out their job, and blamed another party. (Price, David. “Grenfell Inquiry Lawyer Slams Contractor Blame Game.” Construction News, 27 Jan. 2020, [www.constructionnews.co.uk/health-and-safety/grenfell-inquiry-lawyer-accuses-construction-firms-of-blaming-others-27-01-2020/].)

[16] Ministry of Housing, Communities & Local Government. “Government Completes Large-Scale Fire Safety Testing Programme.” GOV.UK, [www.gov.uk/government/news/government-completes-large-scale-fire-safety-testing-programme]. Accessed 24 Jan. 2021.

[17] The question of who bore liability for this was reasonably simple with regard to social housing. Aside from some blocks which had specific contribution clauses written into their contracts, councils were on the whole responsible for carrying out this work. On the 16th of May 2018, the Government committed to paying for the ‘reasonable’ cost of removal and replacement of unsafe cladding on social housing. The estimated cost of these works at the time was £400m.

[18] O’Connor, Mary. “Landlords Told to Remove Grenfell-Style Cladding or Face Action.” The Guardian, 9 Sept. 2018, [www.theguardian.com/uk-news/2018/sep/10/landlords-told-to-remove-grenfell-style-cladding-or-face-action.]

[19] ‘Reasonable’ appears to have been interpreted in some cases as potentially upwards of £50,000 for individual leaseholders, figures which many, unsurprisingly, were unable to afford.

[20] Wilson, Wendy. “Leasehold High-Rise: Who Pays for Fire Work?” House of Commons Briefing Paper, 8244, [www.leaseholdknowledge.com/wp-content/uploads/2018/03/HouseOfCommonsLibraryOnGrenfellCladding.pdf.]

[21] Dorgan, Neil. “‘People Could Lose Their Flat and Everything That They’ve Ever Put into It’ — Leaseholders’ Concern over Cladding Costs | SWLondoner.” South West Londoner, 23 Aug. 2020, [www.swlondoner.co.uk/news/24082020-people-could-lose-their-flat-and-everything-that-theyve-ever-put-into-it-leaseholders-concern-over-cladding-costs/.]

[22] Corker, Sarah, and Phil Hendry. “Cladding Crisis: ‘Delays Could Bankrupt Us.’” BBC News, 22 Jan. 2021, [www.bbc.com/news/business-55748746].

[23] Lee, Joseph. “Dangerous Cladding: ‘Fire Patrols at Our Flats Cost Us £500,000.’” BBC News, 17 Dec. 2020, [www.bbc.com/news/uk-55219607].

[24] Ministry of Housing, Communities, and Local Government. Building Safety Programme:

Monthly Data Release. Monthly Data Release, 14 June 2018.

[25] Ibid.

[26] Strangely, other professionals do not appear set to face the same requirement. See Ing, Will. “Competence Tests for Architects Included in Far-Reaching Building Safety Bill.” The Architects’ Journal, 21 July 2020 [www.architectsjournal.co.uk/news/competence-tests-for-architects-included-in-far-reaching-building-safety-bill].

[27] Lockwood, Alison. “Professional Indemnity Insurance and the Grenfell Effect.” The Construction Index, [www.theconstructionindex.co.uk/news/view/professional-indemnity-insurance-and-the-grenfell-effect.] Accessed 24 Jan. 2021.

[28] The absolute value of PI premiums is not the highest it has ever been. In the 1980s it equated to up to 10 percent of turnover for some practices. It is around half that at the moment, but four or five times previous figures. See: Castella, Tom de. “Profession Faces PI Insurance ‘Horror Story’ over Fire Risk, Architect Warns.” The Architects’ Journal, 20 Mar. 2020, [www.architectsjournal.co.uk/news/profession-faces-pi-insurance-horror-story-over-fire-risk-architect-warns].

[29] Klimt, Mark. “Insurance Costs Will Drive Architects out of Business and Undermine the UK’s Recovery.” The Architects’ Journal, 18 Sept. 2020, [www.architectsjournal.co.uk/news/opinion/insurance-costs-crisis].

[30] Ibid.

[31] Ing, Will. “Hackitt Says New Building Regs Will Ease Architects’ Insurance Crisis.” The Architects’ Journal, 15 Oct. 2020, [www.architectsjournal.co.uk/news/hackitt-says-new-building-regs-will-ease-architects-insurance-crisis].

[32] Foxell, ppXVII-XIX.

[33] Sarfatti Larson, Margali. “The Rise of Professionalism” 1977. Quoted in Foxell, p10.

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Castella, Tom de. “Profession Faces PI Insurance ‘Horror Story’ over Fire Risk, Architect Warns.” The Architects’ Journal, 20 Mar. 2020, [www.architectsjournal.co.uk/news/profession-faces-pi-insurance-horror-story-over-fire-risk-architect-warns].

Corker, Sarah, and Phil Hendry. “Cladding Crisis: ‘Delays Could Bankrupt Us.’” BBC News, 22 Jan. 2021, [www.bbc.com/news/business-55748746].

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