CDM 2015 Comment

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 3^rd 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 6^th 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. 

CDM 2015 comes into force in April 2015; where does the events and entertainments industry stand?

CDM 2015 comes into force in April 2015; where does the events and entertainments industry stand?

 

If we do not proactively engage at every stage but especially in the drafting of new guidance we could be saddled with costly and restrictive legislation which is entirely unsuitable for our businesses.

 The HSE’s Position

 

The HSE’s current official position was provided in a written statement to the Joint Advisory Committee in Entertainment (JACE) which is the body that the HSE recognises as representing the entertainments sector.  The HSE has 5 strands for the entertainment sector (which includes B2B exhibitions and conferences) which are TV and Film, Outdoor, Theatres, Voluntary and Charities (including churches) and Venues.  Exhibitions and conferences fall into the latter alongside indoor music and entertainment events.   The main thrust of the HSE’s statement was as follows:

•  HSE has had a policy of not actively enforcing the current CDM Regulations in the entertainment industry, but has been advised that a blanket policy of not enforcing regulations in a particular sector is unlawful therefore it will be applied.
• The HSE recognises that risk systems differ in entertainment as opposed to conventional construction work.
• CDM will be applied on a risk based ‘proportionate’ basis.
• Companies that already have risk based management systems will need to do little more than they already do.
• Development of this regulatory approach and practical guidance for duty-holders is not time bound by the implementation date of the CDM 2015 Regulations.

Events and entertainment industry’s position

 The exhibitions and conference view point expressed at the aeo¹ meeting was that objections to CDM notwithstanding, it was a reality that was just going to have to be dealt with and the focus should be on preparing for compliance.  At the SAGE² meeting it was clear that other sectors, notably TV and Theatre, are still heavily engaged in attempting to block this legislation at DCMS³ level with arguments centred around economic impact.  The PSA⁴ is collating some very persuasive arguments to counter its application.  The minutes of the last JACE meeting show that the HSE have agreed to a specific TV and film subcommittee on CDM. 

How will CDM be applied?

 When it comes to application, the devil will be in the detail and it is clear that the process is currently skewed with the HSE still viewing the industry through the prism of entertainment.  Application may also highlight flaws in the HSE’s arbitrary strand allocations.  The ‘Venues’ guidance will have to manage/rationalise the differing needs of the eGuide⁵ community of exhibitions and conferences, alongside the A-Guide⁶ community of music and entertainment in arenas.  Can one guidance document cover a One Direction concert at the ACCL and a defence exports (military hardware) exhibition in ExCel?  There is a good reason why the eGuide and then the A-Guide were written as separate health and safety guidance documents to cover those types of events respectively.  All parts of the events and entertainments industry are going to have to ensure that they are sufficiently engaged to be able to influence the drafting of guidance to suit their own sector.

 If not in April 15 then when will it apply? 

The net result of industry efforts is that the HSE has paused the review of the economic impact statements until they can be reviewed in the light of the final draft of the regulations, the ‘mini ACOP’⁷ and the guidance which will be written for the 5 sector specific strands.   They have offered no view on this but having been heavily involved personally in bringing two industry guidance documents into being, at the very least I can see this taking 24 months and we have not even started yet.  The danger is that it will be rushed and poorly consulted.  The HSE chose to formally reject and ignore the event and entertainment industry responses to the consultation process which does not auger well for the consultation on the drafting of guidance.

Legally where do event companies stand on 1 April 2015?

This is criminal law which comes into force, as far as we know, from April 2015.  The HSE’s line appears to be – do not worry we are not going to enforce it in the entertainments industry yet.  The HSE’s statement was issued to JACE as an unheaded and unsigned pdf document and we should at least demand something more credible as the basis on which to ignore new criminal law.

The HSE has sought to allay industry fears by espousing the concept of proportionality by which we may infer that they will not be turning up at the set-up of a WI jam and bake sale demanding to see a CDM file.  The term, however, is subjective and it will be the HSE’s interpretation which counts so we need a lot more clarity on the HSE’s precise meaning of proportionality when it comes to large complex events.

 

From a practical point of view, the HSE has 140 construction inspectors only 30 of whom have been trained for ‘entertainment’.  In my view the chance that CDM will be proactively enforced is virtually nil in the current circumstances.  The problem comes when the HSE follows up an accident which is why I think we should seek a signed off legal position rather than subjective assurances in an unheaded pdf hand out. 

 So what do we do now?

Doing nothing is not an option.  This is criminal law which places onerous responsibilities on designated duty holders who could be named individuals.  If we do not proactively engage at every stage, but especially in the drafting of new guidance, we could be saddled with costly and restrictive legislation which is entirely unsuitable for our businesses.  There are some useful work strands which could be pursued as follows:

 

• The HSE should be pressed for an official statement with a lot more clarity on the legal position regarding the application of CDM to the events and entertainments industry post 1 April 2015.
• The HSE should be pressed for clarity regarding how all elements of the events and entertainments industry (not just TV and film) will be properly represented when it comes to drafting guidance.
• CDM creates differing and potentially divergent issues for venues and event organisers/promoters.  We should look at how that will play out in practical terms under CDM.  Will venues become the day to day enforcers? 
• Unique to the exhibitions industry is the issue of whether an exhibition will be one big CDM site or lots of little ones.  The exhibitions industry needs to develop a decided position on which is more suitable and influence the drafting of guidance accordingly. 
• The economic impact work has been paused and we should use the time to build a compelling case to ensure that the HSE is held to account with regard to the assertion that those that already have risk based systems ‘will need to do little more to comply with the CDM 2015’.

In conclusion

This is an important revision to a major piece of health and safety legislation which is due to be applied from April 2015 on a multibillion pound industry with significant international interests in terms of overseas visitors to events and venues for business, entertainment and tourism.  The HSE ignored the significant (28%) number of respondents from the events industry to the consultation process, dismissing the numerous and well-articulated arguments on the challenges we face as an irrelevant campaign.  As we stand we have no recognisably official communication from the HSE on when this law will be applied or how.  The economic impact statements have yet to be completed and we have not even started drafting the guidance.  The HSE is a publically funded government body whose role is to advise as well as enforce.  This does not inspire confidence and those with business interests in events and entertainment have every reason to demand more clarity from the HSE.

 Notes

1.     Association of Event Organisers

2.     Safety Advisory Group in Entertainment -  a network of safety professionals in the events and entertainments industry

3.     Department of Culture Media and Sport

4.     Production Services Association - represents companies and individuals that provide technical infrastructure for live events

5.     eGuide – Association of Event Venues health and safety guidance for events in UK Venues

6.     A-Guide – National Arenas Association health and safety guidance for Arena Events

7.     Approved Code of Practice – not law per se but could be used by courts to determine compliance with the law