The HSE ran a consultation between the end of March and the beginning of June this year seeking views on HSE's proposals to replace the Construction Design and Management Regulations 2007 and withdraw the Approved Code of Practice.  This article looks at the outcome of that consultation.

Background

As many of you will know, the HSE ran a consultation between the end of March and the beginning of June this year seeking views on HSE's proposals to replace the Construction Design and Management Regulations 2007 and withdraw the Approved Code of Practice.

The HSE hope that by making changes to the Regulations it would make them easy to understand, which is a laudable but highly optimistic aim. The consultation also proposed replacing the CDM Co-ordinator role with the Principal Designer and replacing the accompanying ACOP with 'targeted guidance' to assist duty holders.

The HSE received over 1,400 responses.  This is among the highest of any consultation undertaken by HSE, which perhaps demonstrates the strength of feeling in relation to the proposed changes.

In August 2014 the outcome of the public consultation was reported back to the Health & Safety Executive Board.  The findings were that, at least from representative interested bodies, there was on balance a good, if not unanimous, degree of support for most, but not all of the proposals.

It is interesting to note that the entertainment sector alone had over 400 responses and HSE felt this may have been prompted by ongoing discussions between HSE and this sector about the legal framework surrounding construction and dismantling of temporary de-mountable structures such as grandstands. The HSE Board had directed the HSE to develop revised regulations based on "copy-out" of the Temporary or Mobile Construction Sites Directive (TMCSD) as a starting point, which caused consternation amongst many industry experts and commentators.

Responses to the consultations

  • There was broad support for a simpler and more linear structure to the draft regulations however concern was expressed by smaller contractors and several stakeholders regarding the lowering of the thresholds for formal appointments in the pre-construction and construction phases. The revisions to the Regulations would require a written construction phase health and safety plan for all construction projects.  Under the current regime it is only required for notifiable projects.  Understandably, smaller organisations have concerns about the burden to be placed on them and this may create a disproportionate burden.
  • Also of note was that the revised regulations would retain explicit duties on designers, however such duties do not appear explicitly in the directive, thus going against the ''copy out'' philosophy said to have been adopted.
  • Another key theme within the consultation was the lack of flexibility in the transitional provisions.  In essence the concern was that the new regulations would apply immediately and there was no lead‑in period.  HSE acknowledged these concerns and proposed to re-draft this provision to provide more flexibility.  This should go some way towards allowing duty holders more flexibility in the tricky transition period.
  • A key decision taken as a result of the consultation was in relation to the ACOP.  The consultation proposed the removal of the ACOP and instead targeted guidance, however only 33% of those who responded were in favour of this approach.  A theme from the consultation was that the ACOP was favoured because it was more authoritative than simple guidance.  Furthermore, as the guidance is still not finalised, the Respondents found it difficult to judge how well it could replace an ACOP.  HSE has therefore decided that a case has been made to develop a new shorter sign posting ACOP complemented by industry guidance.  Authority was sought from HSE Board to undertake this work in 2015.
  • As one might expect, the thorny issue of defining ''competence'' also produced a mixed reaction. It was proposed in the consultation that the definition of competence would be less prescriptive and legalistic, and instead be more general, with industry taking a lead in developing approaches to competency. However, there was concern from respondents that the general guidelines would not be sufficiently clear and that stands may therefore be weakened. This demonstrates the difficulties in balancing certainty with flexibility. HSE has agreed to revisit the drafting of this provision to improve clarity.
  • Despite concerns about the ability of designers to discharge the function, the replacement of the role of CDM co-ordinator with that of principal designer was found to be appropriate. It was, however, acknowledged that the role was likely to be undertaken by a third party, during the transitional period at least.

It will be interesting to see how the HSE will approach the revised ACOP in light of the diverse nature of the construction industry and the many projects it will be used for. Also of interest will be the HSE's revised approach to the drafting of the competency provisions, given that the issue of competency affects not just construction activities but a plethora of industries and potential roles; drafting the Regulations so that they are both flexible but also workable will be no mean feat….watch this space.