Subject to Parliamentary approval, new Construction (Design and Management) Regulations 2015 (CDM) will come into force on 6 April 2015. HSE has published draft legal guidance (L153) before the Regulations come into to help anyone who has duties under the Regulations to prepare in advance. The HSE have also issued a letter to the entertainments (and events) industry through the HSE chair of JACE, Cameron Adam, which can be found via this link: update letter . I will produce a more detailed review of L153 shortly which will be published on this blog.
CDM places new onerous criminal law duties on very specific and clearly identifiable companies and individuals. The HSE’s assurances that nothing much has changed glosses over the fact that the legal status and the relationship between various parties in the industry will alter. In most cases an event director or other senior director will take on the Client duties and will be much more liable for the actions of others further down the procurement chain. It is also unclear as to how an event organiser, particularly in exhibitions, is supposed to exercise Client duties over 3rd party contractors who are not part of the procurement chain many of whom will be foreign contractors (and for practical purposes beyond the reach of the HSE) with no prior knowledge of CDM requirements.
The HSE are saying that they will only target proactively a few high risk events but they do not stipulate what they mean by that. We are also reliant on the HSE’s interpretation of what a ‘sensible and proportionate approach to both regulation and compliance’ looks like and it is their interpretation that will count. To all intents and purposes, therefore the events and entertainments industry is currently in regulatory limbo. The HSE’s assurances regarding proportionality are at best equivocal leaving event organisers with the dilemma of having to decide whether to direct resources towards compliance or simply ignore CDM and proceed at risk.
Given this situation and from a wider perspective, how are health and safety professionals and operations staff supposed to articulate a business case for preparation for compliance when the HSE appear to be implying that it is ok for large swathes of the industry to ignore this law?
Key event stakeholders and the HSE do agree that key to this will be event specific guidance which the HSE is planning to publish on April 6th in tandem with the implementation of the regulations. The HSE has rejected the notion of a transitory period for the events industry (which has been afforded to the construction industry). With less than 10 weeks to go the danger is the process will be rushed and the final product consequently flawed. The business impact assessment has been paused while the guidance is drafted and will only be completed after the law comes into force so its findings will presumably be nugatory. The irony is that CDM 2015 is an extension of the Government’s better regulation initiative.
In the interests of positive engagement, my colleagues in the industry have urged caution in taking the HSE to task on this. However since our legitimate concerns were rejected without consideration during the consultation process the HSE is in no position to complain if industry commentators seek to generate a more public discourse through IOSH and similar institutions.
Any event professional would acknowledge the health and safety challenges in the events industry and the need to drive improvements, the frustration is that no one, least of all the HSE, has produced a cogent argument to support the notion that CDM 2015 is the solution to those challenges.