Hi Mark

Don't know at what stage in life you are doing your LLM nor whether you have worked in the construction sector before, so some of what I might write might be teaching you how to suck eggs.

If you go back to CDM iteration 1, HSE made it clear that the focus should be on taking out hazards or at least mitigating the risks arising from those hazards before a project gets on to site and so making structures inherently safer to building, maintain and ultimately take down.

So, the key duty holders were the Client, the Designer and a third party whose title has morphed from Planning Supervisor, through CDM Co-ordinator and latterly Principal Designer.

When CDM 1994 came in I was working for a large engineering consultancy which did lots of Design and I expected HSE to knock on our door as they said they would be targeting large Clients and large Design practices for PROACTIVE inspections. Never happened.

I guess that part of the problem was that quite soon HSE realised that the average HSE Inspector was not competent to assess whether a Client and/or Designer was making appropriate decisions as those need to be those which optimise multiple considerations where H&S is just one objective and best dealt with via an integrated approach to decision making.

So, HSE and others came up with example of what ought to be done to make structures (usually meaning buildings) safer, so e.g. a 1100mm parapet on a roof. But that is one of the easy decisions and even then often putting up permanent edge protection on a roof is NOT an appropriate design decision - for all sorts of reasons including aesthetics. 

HSE like many others tended to view CDM as something to be considered in isolation from everything else. 

Not a lot of OSH professionals or HSE Inspectors are competent to look at e.g. the sequencing of operations to assess whether sufficient regard has been given to H&S when taking account of everything else that needs to be done. The process NEEDS to be driven mostly by construction professionals and NOT health and safety people.

What then happened and which is continuing to happen is that HSE ended up targeting not the front end duty holders but those at site - Principal Contractors and Contractors - often for very similarly worded offences as those which existed under legislation before CDM.

This is quite easy to check. All you have to do is go to the HSE enforcment statistics and search both the prosecutions and notices databases for cases citing specific CDM Regulations. VERY little enforcement by HSE either via prosecutions or notices against front end duty holders - Clients, Designers and Principal Designers (and the forerunners of the PD role).

You wouldn't get quite the full picture by doing this for two main reasons:

1. The HSE database doesn't pick up CDM enforcement if the enforcement authority is not HSE - which in practical terms means prosecutions taken or notices served by the Office of Nuclear Responsibility or the Office of Rail Responsibility

2. You won't find the enforcement that has been taken against front end duty holders where HSE has chosen to use legislation other than CDM - which means usually a few cases taken against e.g. Clients via HSWA Sections 3 or 4 in preference to CDMor and trying to select those from all the other Section 3 or 4 cases is a bit like looking for a needle in a haystack (even though the overall haystack is quite small).

There is a further problem which was very predictable and WAS predicted.

Like any other aspect of compliance there are the good, the bad and those in between.

CDM was never likely to make that much difference to those at the best end of the sector - usually already doing most of the things that CDM anticipated - but it was expected to help get the best players to drive standards up wihtin supply chains and that objective has probably been achieved in part.

CDM was never likely to make any difference to those at the bottom of the pile including the so called cowboy builders. At worst a couple of extra charges in the statistically unlikely event that the Contractor gets caught and hauled in to Court. Doesn't happen often enough partly as there are too few HSE (and other enforcing authority) resources at the sharp end and writing a prosecution report that will stick if a case goes to trial is time consuming. 

So, the question you should perhaps be asking is how much difference CDM has made to the duty holders in the middle tier? 

A further problem is that even when you look at the prosecutions that have been taken against CDM front end duty holders that have resulted in convictions, many of them have involved guilty please in circumstances where the decision may have been more tactical than a genuine belief by defendants that they were either (A) guilty or (B) that guilty. However, once the guilty plea has been entered it has left HSE relatively free rein to portray a narrative far from what the defendant might recognise! - in some cases contrary to positions that have been agreed by both sides in Court.