A few times now I've had discussions with legal advisors asking why NEC contracts do not refer to certain UK statutes, CDM in particular. I can't really level with this apparent craving to refer to certain UK statutes in contracts. Why should a contract refer to any UK statute, it's not exactly an opt-in, opt-out set of rules? The exception that I can see are those statutes that do need complimentary provisions such as provided through Y(UK)2 or those that are a sort of opt-in, such as provided for in Y(UK)3.
I refer to an article printed in ribajournal.com linked below (to scroll down touch on the red vertical line, which took me a while to discover!!):
http://www.ribajournal.com/index.php/feature/article/why_make_life_more_complicated/
Anyway, in there it states "... the PSC does not contain specific provisions requiring the consultant to comply with the CDM Regulations. Clients therefore generally tend to insert a Z-clause to this effect (even though a consultant would be required to comply regardless of whether or not a provision had been included)..."
So, this looks like legal advice to me, you have to comply with UK statute. If anyone thinks a single sentence in a contract actually makes people design/build safer I think they are wrong. So can someone please tell me why on earth we can justify padding out contract terms with unnecessary references to UK statute that apply anyway?
Rob
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This is a good point well put. I think people are just used to seeing these type of terms in contracts and assume that its better to have them in than leave them out!
ReplyDeleteYou could make the same point about important sounding clauses requiring contractors "to comply with all relevant common law, current UK and European legislation, statutory instruments, bylaws, and regulations".
Here's one I particularly like from the now defunct GC/Works "The Contractor shall not unlawfully discriminate within the meaning and scope of the provisions of the Race Relations Act 1976, the Sex Discrimination Act 1975 and 1986 etc".
Well I'm jolly glad to see that in print, I bet when the contractors saw it for the first time they said "oh my, its a good job they're telling us to do that or we might just have fallen foul of the law"!
Another point to demonstrate the futility of all this is to use the "so what?" test. Great we have the clause in our contract, but oh dear, our contractor has been found guilty of discriminating against black woman, what can we do? The answer? Absolutely nothing other than issue a toothless notice to him telling him not to do it again!
The sooner it becomes commonplace to remove these superfluous references the better!
Neil