The Construction Confederation is the main representative organisation for building and civil engineering contractors within the UK construction industry, one of the largest and most diverse sectors within the British economy. The Confederation represents over 5,000 companies who between them carry out over 75% of the total turnover of the industry. Constituent members of the Construction Confederation are the British Woodworking Federation, Civil Engineering Contractors Association, Major Contractors Group, National Federation of Builders, National Contractors Federation and Scottish Building.

  The Construction Confederation welcomes the opportunity to be consulted on this important draft Bill. Health and safety is of paramount importance to the UK construction industry. Whilst much still needs to be done, recent years have seen unparalleled improvements in the performance of our industry, and the Confederation and its members have been at the forefront of much of the underlying change.

GENERAL OBSERVATIONS

  The Confederation is supportive of the provisions set out in the draft bill. The Bill strikes the right balance between meeting public demand for greater accountability in the event of a workplace fatality, and the need to encourage corporate ownership of health and safety responsibilities.

  We are particularly pleased to see that the Bill does not seek to pursue new sanctions against individuals or to provide secondary liability. Extending punitive sanctions against individual managers and directors would increase a tendency for negligent individuals to distance themselves from the management of risk. The single most important principle that must be upheld is that health and safety is a collective responsibility within an organisation, with senior managers responsible for maintaining management arrangements that are robust and appropriate for the risk profile of that business.

  The removal of Crown Exemption in all but a few cases is also something we welcome. In our sector, somewhere in the region of 50% of all construction activity is procured by public sector clients, and it is important that statutory provisions apply equally across the public and private sectors.

SPECIFIC ISSUES

  Management Failure by Senior Managers. As noted, the Confederation agrees that the focus should be on arrangements and practices, rather than any immediate negligent act. However, whilst we support the focus on corporate failings rather than local ones, this approach is liable to pose some difficulties of interpretation. In particular, determining conduct that falls far below what can be reasonably be expected in the circumstances will require reference to reasonable benchmarks of management activity in any similar situation. Clause 3 quite rightly references existing health and safety legislation, codes, guidance, manuals or similar publications as "benchmarks". Whilst this makes perfect sense, there is perhaps a need to tighten the meaning of Clause 3, and in particular subsection 3(4), to ensure that spurious standards, or guidance, are not cited by prosecution or defence. Current Government practice is resulting in the HSE seeking to avoid drafting Approved Codes of Practice and Guidance, and looking to stakeholder bodies to write their own guidance. It is our view that the only realistic and authoritative benchmarks in our sector for determining management failure in relation to such serious offences are health and safety legislation, HSE approved codes of practice, and HSE guidance.

  Furthermore, Clause 3(4) appears to leave open the door to entirely subjective assessment of what can be reasonably expected in the circumstances. This subsection cases some concern and undermines the principle that the bill should reinforce the current statutory framework for health and safety.

  Relevant Duty of Care. An area of particular concern in the construction industry is the role of clients in health and safety. Construction clients (although not domestic clients) have duties under the Construction (Design and Management) Regulations 1994. Consequently, it is important that the exclusions set out under Clause 4(2) do not prevent a case being made against a Government client in relation to a gross breach committed in relation to the procurement, planning and management of a construction project. Whilst it appears that this scenario is covered under Clause 4(1)(c)(ii), it is important that there is no defence available relating "allocation of public resources" in relation to an individual construction project.

15 June 2005