CDM 2015 review: a new direction of travel?

The Health and Safety Executive (HSE) recently published its second Post Implementation Review (PIR) of the Construction (Design and Management) Regulations 2015 (CDM 2015.)

The PIR itself concluded that no major changes are necessary. Therefore, it is perhaps less notable for what it may now change, but more for what it tells us about the current direction of travel in the construction industry

It concluded that there would be no dramatic legislative overhaul, no wholesale rewriting of the framework, and no suggestion that CDM 2015 had fundamentally failed.

The HSE did highlight gaps, but did not consider that they justified any changes. Instead, it reinforced that the legal architecture is broadly sound, but the challenge remains in how effectively duties are understood, discharged and evidenced in practice. That distinction matters.

For many years, CDM 2015 has represented one of the clearest examples of a proactive health and safety legal framework. Unlike reactive models of enforcement that focus only on what went wrong after an incident, CDM was always designed to influence decisions upstream, and be forward thinking on arrangements at the design, procurement and planning stages, where risk can be engineered out, before it becomes embedded in any project.

However, construction remains one of the most dangerous sectors in Great Britain, with fatal injury rates consistently well above the all-industry average. That raises an uncomfortable but important question: is the issue the legal framework itself, or is it the gap between legal duty and practical delivery? Does more still need to be done?

From a legal perspective, CDM has always been a framework requiring active competence, judgment and leadership. It is not a tick-box regime. Yet in practice, some organisations may have treated it that way. Appointments were made because they had to be, and may have been based historically on who people worked with previously, rather than being deemed the most suitable or competent.

Documentation is also produced because it is expected, but not always to say that the CDM file and pre-construction information are adequate to manage the actual risk.

Risk registers are completed because the process demands it. But legal compliance in construction has never been intended to mean production of paperwork. Courts and regulators are increasingly alive to that distinction. One of the more significant legal trends in health and safety enforcement, and cases that result in enforcement or prosecution, has been a move away from procedural compliance as a defence in itself.

Regulators appear more focused on whether dutyholders exercised meaningful control, whether decisions were competent, whether foreseeable risks were properly addressed, and whether systems actually work in practice. That broader regulatory philosophy is highly relevant to the future of CDM 2015.

Larger specific concerns from the PIR remained around the pre-construction stage, competency and input from the principal designers (PDs), the use of effective digitisation, as well as ensuring that there is a proportionate approach to SMEs.

The continued spotlight on PDs is a good example. Legally, the role is strategically important because it sits at the point where risk can often be prevented rather than managed later. Yet there remains inconsistency in the market about how that duty is interpreted, and there has been further confusion due to similar but distinct roles under the Building Safety Act.

Furthermore, clients should take note. One of the recurring issues is the misconception that responsibility can simply be outsourced through contractual arrangements. CDM 2015 has never allowed that in any absolute sense. Clients carry duties because they shape projects, control resources, and influence strategic decisions.

Appointing consultants, client agents or contractors may help in the performance of their role, and discharge aspects of those duties, but legal responsibility is non-delegable, so, it does not remove the need for proper oversight, competence in selection, and assurance that the framework is functioning effectively.

Competency is a final area where I anticipate we may see further scrutiny or enforcement, considering whether parties have the necessary skills, knowledge, experience and importantly, behaviours to carry out the actual work and projects they do. Furthermore, it is now required that those undertaking construction ensure that all functional requirements of the building regulations can be met.

To conclude, there is a wider cultural point to make. CDM 2015 was never intended to be merely a construction safety regulation. At its best, it is a leadership framework and way of prompting multiple parties to work collaboratively and alongside each other to effectively manage risk.

My view is that the PIR signals that we are hopefully in a maturing phase for CDM 2015. The early years were about embedding the framework. The next phase is likely to be about evidencing and demonstrating its effectiveness. In that sense, the message is clear: CDM 2015 is not going away, but the expectation that dutyholders can demonstrate meaningful leadership, real risk control and defensible decision-making is only likely to grow.

Emma Evans is a Partner at Bexley Beaumont.