2022 ─ ICM Celebrating 180 Years since founding in 1842! ─ rising to the challenge of Digital Age Transformation ─ driving the future of a Safe Sector with Competent Organisations! ─ the voice for construction management …

"Wow! ─ what an incredible couple of years!" ─ at the start of 2022 David Jones shares our vision bringing the past, present and future into an interesting alignment with anecdotal waypoints along the recent unique ICM timeline ...

... '20/20 Vision' ─ a term used to express normal visual acuity (the clarity or sharpness of vision) measured at a distance of 20 feet ─ if you have 20/20 vision, it is accepted you can see clearly at 20 feet what should normally be seen at that distance ─ however, having 20/20 vision does not necessarily mean having perfect vision ─ in March 2020 I was talking about our future strategic plans to a well-filled audience attending the Direct Works conference in Coventry outlining a pilot focus on competence across an exciting social housing forum with over two million homes being well run largely through DLOs ─ wow! ...

... then the Covid-19 pandemic struck and changed the whole world and the UK construction sector has had to restart in a new normal ... in 2022 ─ already 22-years into the 21st Century! ─ our Institute celebrates 180-years since its early founders came together on a chilly February in London

 

Organisational culture implies the existence of a particular system in which individual competences correlate and complete each other and the key-competences, without which the activity of the organisation has a different content and a different quality

Dragomirescu, H. (2004), Gestiunea competenţelor. Suport tutorial de curs, MBA, INDE, Bucureşti

Referring to the HSE's definition of Principal designers ─ designers appointed by the client in projects involving more than one contractor ─ can be an organisation or an individual with sufficient knowledge, experience and ability to carry out the role ─ so, how does an organisation become 'Competent'?

How exactly does the client know what is a 'Competent' organisation to undertake the appointed commission is a great question and, of course, is the client's most important essential legal absolute duty to be assured the dutyholders they have to appoint are competent ???

But, what exactly is 'organisation'?

... so, if we can start with the thought that Organisation refers to a collection of individual people, who are involved collectively in many ways connected pursuing defined objectives ─ almost sets the theme around 'TEAM' ─ understood in terms of a social system which comprises all formal human relationships ─ encompasses division of work among employees and alignment of tasks towards the ultimate goal of the project ~ any project! ...

... hot on the heels of the primary objective of an organisation to achieve its goals and objectives competence can be seen as the second most important managerial function, coordinating the work of employees, procuring the resources and combining the two, in pursuance of the organisation goals to deliver upon the commissioning client's expectations! ...

The 'Competence' of an organisation derives from its guiding mind! ─ link that to the Olympian ideal of sound mind─sound body and the idea how to get to a Competent Organisation starts to evolve ... 

... and that then seeded the latest innovation from the ICM Competence Working Group formed during the covid lockdown period of the pandemic ... using yet another innovation of the digital world of MS Teams and now common Zoom meetings ...

The delivery of the quality of the services from an organisation and the efficiency with which they are achieved depends heavily upon the quality and structure of the human resources who comprise the team ─ within the construction sector it is typical to find there is a distinct  core team in an organisation that controls the business direction and other more transient teams who come together around the projects of the organisation ─ the ICM Working Group realised the similarity to that Olympian concept of a sound head and body working competently together sits at the heart of a competent organisation! ... we had our starting point! ...

... it wasn't until 2007 that an organisation was finally declared possible to face, as its own legal person, and to answer the charge of corporately killing ... it had been a long and arduous few decades of legal and political will to eventually bring onto the UK statute books the Corporate Manslaughter and Corporate Homicide Act 2007 [CMCHA] under which one of the fundamental duties of care is the carrying on of any construction or maintenance operations which clearly underlines the importance of the regulatory significance of the Construction (Design and Management) Regulations ... I recall being at that pivotal meeting in London around 2006 when the then campaign group FACK [Families Against Corporate Killers] came together at the Centre for Corporate Accountability in the run-up to CMCHA to hear some powerfully convincing reasons for the need to replace the 'Invisible Man In The Dock' when corporate failure kills!     

‘where a corporation, through the controlling mind of one of its agents, does an act which fulfils the pre-requisites for the crime of manslaughter, it is properly indictable for the crime of manslaughter.’

1990, Justice Taylor stated in a ruling involving the trial of P&O European Ferries for the manslaughter of those who died in the Zeebrugge Disaster

In the trial in 1998 of Great Western Trains over the Southall Train disaster, the Crown tried to argue that the this doctrine no longer applied and that it was possible to consider the conduct of the 'company' as a whole rather than the conduct of an individual 'controlling mind'. The trial judge ruled that:

‘There is, I accept, some attraction in the fact that gross negligence manslaughter, involving as it does an objective test rather than mens rea in the strict sense of the expression, is in some ways closer to statutory offences of the kind in the cases relied on by Mr Lissack than it is to the ordinary run of criminal offences. But I do not think this is a good reason for no longer having to look for a directing mind in the company to identify where the fault occurred. In my judgement it is still necessary to look for such a directing mind and identify whose gross negligence it is that fixes the company with criminal responsibility.’

‘A company may in many ways be likened to a human body. It has a brain and nerve centre which controls what it does. It also has hands which hold the tools and act in accordance with directions from the centre. Some of the people in the company are mere servants and agents who are nothing more than the hand to do the work and cannot be said to represent the mind and will. Others are directors and managers who represent the directing mind and will of the company, and control what it does. THE STATE OF MIND OF THESE MANAGERS IS THE STATE OF MIND OF THE COMPANY and is treated by the law as such.’

doctrine was set out in the case of HL Bolton (Engineering) Co Ltd v TJ Grahams & Sons Ltd

In the trial in 1998 of Great Western Trains over the Southall Train disaster, the Crown tried to argue that the this doctrine no longer applied and that it was possible to consider the conduct of the 'company' as a whole rather than the conduct of an individual 'controlling mind'. The trial judge ruled that:

‘There is, I accept, some attraction in the fact that gross negligence manslaughter, involving as it does an objective test rather than mens rea in the strict sense of the expression, is in some ways closer to statutory offences of the kind in the cases relied on by Mr Lissack than it is to the ordinary run of criminal offences. But I do not think this is a good reason for no longer having to look for a directing mind in the company to identify where the fault occurred. In my judgement it is still necessary to look for such a directing mind and identify whose gross negligence it is that fixes the company with criminal responsibility.’

Accordingly, I conclude that the doctrine of identification which is both clear, certain and established is the relevant doctrine by which a corporation may be fixed with liability for manslaughter by gross negligence.’

As a result of this ruling, the Attorney General asked the Court of Appeal for a clarification of the law on this point. In Attorney General's Reference No 2/1999 , the court held that the Trial judge was correct and that

‘… the identification principle remains the only basis in common law for corporate liability for gross negligence manslaughter.’

The identification principle states that conduct and states of mind of certain senior individuals within a company can be deemed to be those of the company itself. Therefore a prosecution of one of these individuals can, in relation to certain offences, result in the prosecution of the company.

This doctrine was set out in the case of HL Bolton (Engineering) Co Ltd v TJ Grahams & Sons Ltd. This stated the following:

‘A company may in many ways be likened to a human body. It has a brain and nerve centre which controls what it does. It also has hands which hold the tools and act in accordance with directions from the centre. Some of the people in the company are mere servants and agents who are nothing more than the hand to do the work and cannot be said to represent the mind and will. Others are directors and managers who represent the directing mind and will of the company, and control what it does. The state of mind of these managers is the state of mind of the company and is treated by the law as such.’

"CDM isn't a profession ─ it's a culture!"

Stuart Nattrass - UK's first Chief Inspector of Construction appointed at the HSE in 1994 in conversation with David Jones

In 2022 David Jones recalls the UK's initial reluctance to enact the EU Directive 92/57/EEC 'Temporary or Mobile Construction Sites' back in 1992 and it took some two years to overcome ─  due to strong lobbying from the membership bodies representing UK designers who fought hard to separate design from construction ─ thus, in 1994, and facing the threat of being prosecuted by the European Commission in the highest EU Court of Justice the UK brought in CDM with a distinct separation ─ the Pre-Construction Phase / Construction Phase ─ in a largely uncontrolled landscape the sector had ignored the good advice of its very first Chief Inspector of Construction at the HSE and instead of simply applying what the fairly simple Directive requires, set about creating a 'new' professional ─ starting with Planning Supervisors who neither planned nor supervised; and, when it was realised they didn't work too well, in 2007 government attempted to coordinate construction safety better and replaced all planning supervisors with yet another 'new' professional ─ CDM Coordinator or as better colloquially known by as 'CDM-C' who went off largely uncoordinated but, by which time, had grouped into quasi-professional body status simply creating reams of additional paperwork and glossy documents in the pre-construction phase that were largely ignored by the constructors ... 

... the latest attempt to get back to the original culture of CDM was in made 2015 with the re-enactment of the CDM Regulations ─ the government abolished the statutory role of the CDM-C who had no official locus in the sector from that point ─ government was literally forcing the designers ─ Principal Designers ─ to undertake their statutory obligation and responsibility to competently create safe construction themselves! ... 

... however, yet again, the sector's Principal Designers or as better colloquially referred to as 'PD' have largely chosen to ignore the fact they cannot abrogate their criminal responsibility onto a third-party yet elect in their droves to pass their PD role to some contracted earlier CDM-C who now has no statutory duty and is only now bound to the real statutory dutyholder through some contractual arrangement! ...  ...

Uncertainty!

Lord Reid stated that the following individuals were controlling minds of a company:

‘the board of directors, the managing director and perhaps other superior officers of a company [who] carry out the functions of manslaughter and speak and act as the company’

Viscount Dilhorne gave a more limited interpretation saying that a controlling mind is a person:

‘Who is in actual control of the operations of a company or of part of them and who is not responsible to another person in the company for the manner in which he discharges his duties in the sense of being under his orders.’

And Lord Diplock stated that the people who are the controlling minds are those:

‘who by the memorandum and articles of association or as a result of action taken by the directors or by the company in general meeting pursuant to the articles are entrusted with the exercise of the powers of the company.’

Noble Lords

David Jones from his earlier experiences in senior management roles across a number of property and construction divisions of several of London's local authorities over a huge portfolio of public property is able to say that it is less clear who within Local Councils will be considered a ‘controlling mind’ ...

... in the prosecution of Barrow in Furness Borough Council, the trial judge ruled that Gill Beckingham, the Council’s architect was not such a person ... however the prosecution had argued that in relation to the particular transaction at the heart of the case – the maintenance of the air-conditioning in council premises – no one else in the council ‘exercised any supervision or control’ over her ... but the court agreed with the defence case that stated:

‘The transacting or coordinating of a contract well within her budgetary limits however important its implications for health and safety, were simply not a function of the Board or the senior management team, nor the function of management of the corporation.’

After quoting Lord Pearson in Tesco who said that ‘Supervision of the details of operation is not normally a function of higher management’, the judge stated that:

‘no reasonable jury could conclude that Gill Beckingham was, at the material time, and in the discharge of her functions, either in relation to the forming or coordinating of the contract, or, in supervision of its performance thereafter, the council's controlling mind’

He went onto make a general comment:

‘I should add this: there are, as it seems to me, in the present state of the law relating to corporate manslaughter, considerable difficulties facing those who contemplate the prosecution of a local authority. For the reasons advanced by Mr Turner, a local authority is not, in all material particulars, to be equated with a commercial enterprise, of any size; still less perhaps with a very small corporation with few directors or a sole director. It is far from clear to me I confess that even the Chief Executive Officer could properly be described as ‘the control mind’ of a council of elected members, but that is not something I have to decide.’ 

But, now in 2022 the Institute of Construction Management needs to drive the Competence Agenda; to be the voice of construction management; and assist the sector to properly understand its statutory corporate duty and through the excellent work of its Competency Working Group now launch the secure, reliable, independently third-party audited, certified, ISO9001 quality managed proof of appropriate Knowledge, Skills, Expertise, and Capability for all the Statutory Duty Holders operating in compliance with the Construction (Design and Management) Regulations

David Jones realised early on that CDM had not started well as intended; had literally stumbled the sector through some 24 years of incompetence; had been regulated from a poorly resourced system without the boots on the ground to enforce the law; and had allowed the sector to race to the bottom ─ hopefully with the sad totally unavoidable Grenfell fire tragedy ─ the bottom has been found!  

The latest reiteration of CDM in 2015 was, for David Jones, his opportunity to push back against the currents and start to revisit his earlier award-winning 2007 success at training / accrediting well over 10,000 local authority colleagues in other local authorities across many of the UK's boroughs ─ project won Constructing Excellence in 2007 regional and national CDM Award and again in 2011 for Leadership and People Development and David was proudly awarded by HSE one of only three H&S Champions  across the UK in 2008! 

In 2017 David was invited by the Executive Board of  ICM to lead its Transition and Transformation and a number of Working Groups began to focus upon competence ...

... by 2018 David had researched into Construction Competence and how its formula could be effectively protected and regularised in its metrics ─ drawing similarity from F1 when Bernie Ecclestone realised such a dangerous motor sport needed a core formula for all the high-hazard adrenaline to enable the innocent trusting spectators to visit any F1 event anywhere around the globe and do so in trust of being kept safe while the dangerous industry continues to perform ─  the National CDM Competence Registry™® was launched on the Skills Hub stage at London Build live at the London Olympia venue ... 

... in 2019 David was invited to assist the CITB to develop the Digital Competencies Framework for the nation in line with the whitepaper 'UNLOCKING CONSTRUCTION'S DIGITAL FUTURE: A skills plan for industry - part of CITB's Changing Construction─Changing Skills programme [published in 2018 - same date as ICM's ™®] ...

...  in 2022 as the sector prepares to address the new Building Safety Bill ─ the UK will need truly Competent Designers to design safe solutions for any building operations and/or construction works and civil engineering plus truly Competent Principal Designers to plan, manage and monitor the pre-construction phase and coordinate matters relating to health and safety during the pre-construction phase ─ the ICM unlocks its solution for driving the future of a Safe Sector with Competent Organisations!

Question:

... so, as the Building Safety Bill makes its way through parliament ─ driven by so many silos each with own often hidden agendas and commercial interests and many conflicts of interest ─ how exactly is the construction sector going to deal with the new emergence of two same named separate professionals with different functions both called PRINCIPAL DESIGNER ??? ...

... more confusion and uncertainty for those innocents who need to place trust of their lives in the hands of appropriately competent professionals ??? ...

"I'm proud to confirm ICM remains true to its original charitable roots operating with an open door devoid of any silo! ─ so, please come through and join the voice of construction management ─ let's together make 2022 a really special 180-YEAR anniversary to change the poor failed culture of our diverse construction sector to better serve and protect the innocent community who simply have no alternative but to rely on and place their trust, homes and lives in the hands of professionals"

David Jones - Institute of construction management 2022

Ed.