Genesis: the birth of a regulation

Many legal issues affecting the construction industry are resolved by looking at previous cases. Occasionally, an act of parliament affects the construction industry, for example the Contracts (Rights of Third Parties) Act 1999. However, there is a great deal more delegated legislation that is relevant to construction. The authority for this arises under a parent act and it is referred to as a statutory instrument or, more usually, as regulations. New or revised regulations come into force in either April or October. This April it was the new CIS tax regulations and CDM 2007.

Delegated legislation is used to set out the detail of the requirements of the parent act. The Health and Safety at Work Act 1974, for instance, requires all employers to run their business in such a way that neither their employees nor anyone else is at risk. The asbestos regulations under that act are more detailed about what must be done to achieve that overall requirement.

Because life, and legislation, is so complex now, the government will often consult extensively before bringing delegated legislation into effect. By its nature such legislation is usually so detailed that neither MPs nor civil servants really understand the implications of what is being drafted for those who will be affected by it. So it makes sense for them to seek guidance from people in the relevant industry who will understand the implications much better. For instance, in the case of CDM there have been industry-wide consultations since 2002.

Once regulations have been drafted and agreed, they are “laid” in parliament, which means that a copy of them is deposited there for any MP to read. If they are subject to what is known as the “negative procedure” they will automatically come into force unless within 40 days of being laid, either house passes a motion for their annulment. There is so much legislation to be debated in parliament these days that an extra debating chamber has been set up. Even so, it is difficult to find parliamentary time for debates on regulations that are subject to the negative procedure.

Because of consultations during the drafting period objections to regulations are not usually made. If they are this is usually done by what is called an early day motion, and this is what happened to CDM 2007. The motion was lodged officially by David Cameron, as leader of the opposition, and gained the support of another 11 MPs. Despite this low level of interest, because the leader of the opposition had put his name to it, time was given for debate in a delegated legislation committee, consisting of 17 MPs who duly debated the implementation (or otherwise) of the regulations.

New or revised regulations come into force in either April or October. This April it was the turn of the CIS regulations and also CDM 2007

However, as is the way with politics, matters never stand still and by the time the regulations were debated on 10 May, it must have been clear to those opposing the implementation of CDM that their efforts to force a vote on the issue would not be successful. Since the government was strongly in favour of these regulations and the composition of the committee reflected the relative strengths of the parties in the Commons, it would always have been a difficult case to win.

So it was not totally surprising that the Conservative spokesperson for health and safety said he was seeking only a debate on the issue, and had never wanted to have CDM 2007 revoked.

The debate duly covered the reservations that the Conservatives had about the regulations, and the industry’s support for them. We also learned that there is a long-term commitment by the Health and Safety Executive to seek the integration of CDM with the process for obtaining planning permission and building control approval.

Unsurprisingly, in view of the strong support for the regulations, the proposed revocation was not put to a vote and CDM 2007 remains in force.