In my experience there are five main problems in dealing with health and safety law in contracts.
First, it cedes the power to make health and safety laws to people who draft contracts.
Second, why do it anyway? Health and safety law is the law of the land and we all have duties to comply that cannot be modified by anything written in a contract. So why not just learn the law instead of the contract and get on with it?
If we all did that, complaints about CDM would evaporate, and at the same time, project management and health and safety management standards in our industry would improve exponentially.
Third, health and safety law is unfashionable and does not generate big fees. Few lawyers understand it fully, the way it works and the difference between this type of law and civil law. They have a tendency to make mistakes when writing amendments to contracts. For example, it is commonplace – in my experience – for lawyers to include requirements for contractors to comply with regulations that were repealed or modified years ago.
The fourth problems concerns the nature of modern health and safety law. It is goal-setting, not prescriptive; it tells people what must be achieved, not what must be done, and it leaves them free to achieve it through their own competence and ability to innovate.
Rigid contract terms limit and prevent this, and can have unforeseen effects, as Yorkshire Water found some years ago when it included the method statement of Alfred McAlpine in the documents forming part of the contract for a project at Grimwith Reservoir.
Finally, there is the self-incrimination factor. Consider the following: "The contractor acknowledges and accepts that the employer has provided no information about this site whatsoever. The contractor shall visit the site and discover everything there is to know about the site, bear all possible consequences and indemnify the employer in full against any failure to comply with this clause."
In civil law, this clause might work in the manner intended by its drafter. In the criminal code, all it might do is provide the Health and Safety Executive with clear written evidence of the way in which the employer had broken the law by failing to comply with its obligations under CDM regulation 11.
So let's keep the lawyers out of health and safety law until they can demonstrate that they have the competence and adequacy of resource to deal with it as it is written, not as they might like it to be.
Tony Clarke, James R Knowles, via email.