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Blog: Another brick out of the wall - ACoP

It is now looking almost certain that the UK’s regulatory framework will be formally relieved of the important, long-standing Approved Code of Practice (ACoP) for the construction sector, despite two-thirds supporting the provision of an ACoP in the HSE’s consultation on the Construction Design and Management (CDM) Regulations, which came into force on 6 April 2015.

It is not nostalgia that leads us to believe that this is a retrograde step. Political pressure on the HSE has seen unwelcome changes to the longstanding principles that have proved so successful – packages of regulation clarified in an ACoP combined with guidance.

At the Construction Industry Advisory Committee (CONIAC) meeting in November the HSE sought agreement to back its proposed recommendation to the Board that there is “no strong support” for an ACoP (which in plain English means there is still support).

The regulator’s approach to the industry’s expectations that created the sector guidance was tactically clever, but the unwritten intention has appeared clear – even for such a high risk sector, the HSE cannot justify a case for the construction ACoP to reappear. The HSE’s change of heart appears to be a reaction to austerity measures and it seems the construction industry must follow suit. This seems a strange position bearing in mind the status of ACoPs within the UK’s legal framework.

CONIAC has lost its voice too, with the new guidance (L153) being described as “just as good” as an ACoP. Unions have raised concerns and at the recent meeting argued that the loss of an ACoP was wrong; the HSE will be obliged to report to its own Board that CONIAC was not unanimously in favour of the proposal to remove the ACoP.

It is hard to understand what could be so wrong with having an ACoP. Is its death knell more to do with political expediency, a back door method of influencing court cases (the reverse burden of proof position created for ACoPs) or something else? Perhaps writing to Judith Hackitt, chair of the HSE’s Board, may help. Sometimes carefully reasoned cases can make all the difference.

A wider circle of objection could influence a re-think about an ACoP for the construction industry. It is certainly felt by many that this area of enforcement would benefit from more clarity and transparency in the application of the detail of the regulatory requirements.

Do you think the HSE Board should commission a CDM ACoP? Discuss in our LinkedIn group:

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