The construction sector is awaiting the consultation on the latest revision to the Construction (Design and Management) Regulations, although the timing is uncertain and appears to be more political than procedural. John Carpenter considers what it might mean for those working in the industry and how they can shape the final regulations.
Industry is expecting the Government to bring into force the third version of the Construction (Design and Management) Regulations, the latest incarnation of a regulatory framework that was first introduced in 1995.
Arguably, never has one set of regulations generated so much good. Equally, never has a set of regulations generated so much unnecessary bureaucracy and uncertainty accompanied by continued debate (yes, even after almost 19 years) as to what they mean, and how they should be implemented.
Whatever the phasing of the consultation period for the revision it comes at a critical time. Make no mistake, industry has a lot on its mind at present as it tenuously climbs out of recession. The last thing it needs is anything that introduces unfamiliarity or upsets current methodologies. The means by which the introduction of the revision, including any new guidance, is handled will be crucial to its success.
The latest revision has arisen because the European Union has seen the need to include matters that it considers were previously omitted (primarily relating to the inclusion of the domestic client as a duty holder), and for which the UK was in danger of EU legal proceedings.
It is also a result of the Government’s strategy to minimise regulations in general and, specifically, to avoid ‘gold-plating’. In this latter regard, the Government has its eye on the fact that there are subjects in the current regulations which do not appear in the originating EU Directive, specifically competency, and designer duties. It is anticipated that these will be omitted.
The CDM co-ordinator will probably also disappear with such necessary duties then allocated to a ‘lead designer’ — where they should always have been. As a result, the revised regulations will mirror the directive (an approach known as ‘copy-out’).
It is likely that the approved code of practice (ACoP) will also disappear or be very significantly reduced. Instead, it will fall to industry, probably under the auspices of the HSE, to write any supplementary guidance.
In a nutshell, this means new regulations, a new ACoP (or none at all) and new guidance. By any yardstick, a major change.
However, the duties on the various parties (with the exception of domestic clients, although these will be delegated) will hardly change.
Rather it is the perception that is of concern; for example the removal of competency requirements from explicit regulation to guidance (even though it is implicit in other legislation). It is particularly unfortunate that the items being considered for removal are those which have caused the most problems and misunderstanding.
It is important to remember that the CDM regulations have helped move the industry forward significantly. For instance, they have improved everyone’s general awareness of the need to consider the well-being of people, and brought clarity to the responsibilities that everyone holds.
The regulations provide an excellent and solid foundation for good business management. Parallel initiatives such as John Prescott’s 2001 summit conference and the ‘Working Well Together’ campaign have used the regulations as an underpinning base.
In turn, this has led, for example, to a ‘cards for all’ approach, site inductions and security, whereby contractors now know who is on-site, not to mention some significant cultural changes. Even health is now beginning to make the agenda.
In recent months the HSE has been at pains to emphasise that the revocation of the head protection regulations did not infer that hard hats were no longer necessary.
In a similar fashion, it will take a carefully orchestrated campaign to get the message across to industry that the omission of, say, competency requirements from the revised regulations does not mean appropriate checks and standards fall by the wayside.
The issue here has been the inappropriate implementation rather than the approach itself, set out in appendix 4 of the CDM ACoP (and now in PAS91
, which has been endorsed by the Government, the HSE and industry).
For contractors, where the regulations have been generally successful, the revisions should present the opportunity to bring some sense to the whole panoply of ‘risk assessment’, ‘method statements’ and ‘safe systems of work’.
Much of industry still has difficulty in understanding what is required and this is exacerbated by unnecessary demands from others to include superfluous data. The tail is wagging the dog. Action is in hand but it needs industry support. 
The omission of designer duties may have less impact as those who were endeavouring to comply will no doubt continue in their own way.
However, those who are currently paying lip service are likely to gradually reduce their efforts. The omission will be detrimental to those designers that have clients who demand to see where ‘the requirement is’ for taking a particular action. What will remain a constant is the fact that neither industry nor the HSE understands ‘how far to go’ in eliminating hazard and reducing risk in an area where there is no case law to provide practical guidance and where contract arrangements often act contrary to good safety risk management.
When a legal procedure has not been understood for such a period of time, it is clearly not good law
. This is the last opportunity to clarify the practical interpretation and give emphasis to proportionate action.
So the message here is for industry leaders, across all duty-holders, to ensure that the maximum opportunity is taken to gain benefit from the changes, even if we do not fully support them.
It is to identify those aspects which currently generate paperwork rather than value and to bring clarity where there is longstanding uncertainty.
John Carpenter is an independent consultant. He also authored appendix 4 of the CDM ACoP and the CITB-Construction Skills ‘Guidance for Designers’
1 Carpenter J. ‘Safe systems of work for construction contractors: unravelling a serious muddle’, Institution of Civil Engineers tbp report
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