Legal Professional Privilege cannot be defeated by the FRC’s interpretation of its disclosure regime
The face of the construction industry has changed massively in the last 40 years, with progressive technologies, innovative materials and advanced methods of construction continually evolving. The health and safety legislative framework which should support these new ideas has not kept pace with the industry, with the primary legislation and regulatory body - the Health and Safety at Work Act 1974 and the Health and Safety Executive (HSE) respectively - now being more than 40 years old. Whilst the industry has seen improvement in the area of health and safety, with the development of the Construction (Design and Management) Regulations (‘CDM Regulations’) and Building Regulations, some suggest that if health and safety is to be effective and modernised in such a way whereby it can keep pace with the industry, any such changes must be supported by a wider transformation of the industry’s culture.
Legislation supported by the industry cooperation is by no means a modern idea. The Health and Safety at Work Act 1974 was implemented following a 1970 report by Lord Robens where he was tasked with undertaking a holistic review of health and safety in the workplace. Unusually for a health and safety inquiry, the report was not commissioned as a result of a disaster. Prior to publishing his report, Lord Robens commented:
“Law can only enforce the rules…Up to date legislation needs to be enacted to meet the conditions of modern times there can be no doubt. At best, however, the law-makers can only lay down the guidelines of good behaviour. Good relations are based on willingness to cooperate. This entails a completely new approach both by management and work people, with the emphasis upon managerial attitudes: for that is where power and authority and leadership lies”.
Now, the publication of Dame Judith Hackitt’s Review of Building Regulations and Fire Safety (the ‘Report’) proposes the most substantial transformation of health and safety in the construction industry since the introduction of the CDM Regulations in the mid-90s. As with the Griffiths inquiry which reviewed tower block safety following the Ronan Point disaster in 1968, Hackitt’s review was commissioned following the Grenfell Tower fire. The Report primarily focusses on multi-occupancy higher risk residential buildings (HRRBs) over ten storeys in height but does suggest that the recommendations may be extended to other buildings which are used by vulnerable people such as nursing homes and hospitals in future. A lot of the criticism immediately following the publication of the Report was aimed at the potential limitation of the recommendations to HRRBs with calls for such other buildings to be automatically included in the government’s forthcoming review.
In the aftermath of the Grenfell fire it was suspected that building materials, such as cladding and fire doors, may have fallen short of fire safety standards. Following the fire, many called for an immediate ban on the use of such cladding and similar materials in the construction of high-rise residential buildings. The government is holding a substantial consultation on the use of combustible materials in cladding and insulation and a decision is expected to follow the conclusion of the consultation on 14 August 2018.
During the consultation period, the Secretary of State for Housing has already recommended a ban on the use of such materials in residential buildings over 18 metres in height. The Report does not take the same strict approach and instead aims to change the culture of the construction industry with regards to health and safety by focussing on principals and outcomes.
Industry experts are torn as to whether a ban is required. Some experts in the fire safety industry say a ban on materials may not be required if the materials are used correctly and other safety measures such as multiple staircases (or in the event of a single staircase ensuring it is suitably protected), refuge areas, sprinklers and fire doors are properly designed and implemented. They are also concerned that a ban on combustible materials may not be sustainable due to the lack of availability or and prohibitive costs of non-combustible materials. Experts are citing the need to overhaul the current testing regime rather than proceeding straight to an outright ban. Others, such as the Royal Institute of British Architects (RIBA), want to see an outright ban extended to all high-rise buildings including those which are commercial or mixed use.
The Report categorises four main systemic failures within the industry: (1) a general ignorance of the regulations and guidance; (2) a lack of priority on safety measures for the sake of keeping costs low; (3) a lack of clarity on roles and responsibilities; and (4) inadequate regulatory oversight and enforcement.
The Report contains numerous proposals on how the change in culture may be achieved. From the point of view of clients, designers and contractors in the industry the foremost recommendations are based on creating additional roles and responsibilities for those who hold a significant stake in health and safety aspects of a construction project (Dutyholders), producing and maintaining more substantial health and safety records (the ‘Golden Thread’), and additional contractual considerations during procurement.
In this series of blogs, we will look in turn at each of the Report’s key recommendations and their potential impact on the construction industry.
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