CDM has been widely criticised for introducing further bureaucracy into the industry and for being difficult to implement and enforce. Any regime that requires compliance with a set of rules, with fines or imprisonment as the only real incentive to compliance, is unlikely to win hearts and minds.
The HSE, when it reforms CDM, should take a tip from the Construction Act. That works in a clever way. It requires people to put certain terms into their construction contracts governing, for example, payment and adjudication. Parties to these contracts are given some freedom in drafting them, but if they fail to include these terms they are not punished. Instead, the statutory Scheme for Construction Contracts is inserted, and covers payment and adjudication.
This is an innovative and highly effective means of legislating. Instead of punishing people for failure to contract fairly and properly, their failure is simply cured. They can police the contracts themselves and enforce their contractual rights – and they are interested and motivated to do so.
The HSE should learn from this and devise a statutory regime that requires construction contracts to include terms relating to health and safety. Different terms may be required for different types of construction contract. The CDM regulations have their shortcomings because they do not, and indeed cannot, be specific about what practices are good, adequate or bad in the context of specific projects and specific sites.
But a regime can be drafted that requires construction contracts to deal with these matters. Consultants' contracts can be required to include a term that designs must have regard to the health and safety of people carrying out construction work. Building contracts can be required to include as contract documents method statements covering all construction activities. In default, a statutory scheme should apply to insert the appropriate terms into the particular form of contract.
Failure to comply with health and safety issues will then constitute a breach of contract carrying with it the right to financial compensation. In this way the parties to construction contracts will gain a healthy self-interest in ensuring good health and safety. They will police these issues themselves and ensure compliance to avoid disputes. Poachers will turn into gamekeepers.
At present the precise relationship between CDM and the common law is unclear. CDM regulation 13 imposes on designers such as architects a duty to ensure that their work has regard for the need to avoid risks to any person at work. However, in common law, an architect is within their rights if they stand by and watch a builder do something highly dangerous (see Clayton vs Woodman). Buildability is simply not the province of architects, and in common law they do not have to consider a safe method of construction. It may be that CDM has changed the common law by imposing new duties, but this is a grey area. Contractual terms governing health and safety would help to clarify the law.
The breach of a statutory duty stated in regulations ought to give rise to a right of action in civil proceedings. Under CDM this right of action is excluded by regulation 21. Therefore, an action in negligence against an architect or engineer who fails to design a building to take into account safety issues in the building process may fail in common law because the method of construction is not within the architect's or engineer's province. An action for breach of statutory duty for failing to comply with regulation 13 would also be excluded by regulation 21.
The absence of a civil right of action for breach of CDM effectively emasculates the regulations. The right to sue for breach of the regulations must be introduced urgently.
By giving the parties to construction contracts the right to enforce the regulations contractually, and also to sue for breach of statutory duty, the regulations will become effective and enforceable.
Philip Harris is a Partner with Warwickshire solicitors, Wright Hassall.