Further to our last insight on 22 May, as predicted, the Scottish Government (SG) updated its guidance yesterday to reflect movement on the proposed six-phase plan aimed at getting the construction sector fully back on site.

Leaving to one side for the moment the matter of the difference between the strict legal position and the SG Guidance, the guidance is now indicating that, as of 29 May, the construction sector should be moving into the first two phases of the plan; Phase 0 (Planning) and Phase 1 (COVID-19 pre-start site preparations).

So, essentially, the guidance now says that the sector should be preparing sites for the re-commencement of non-essential construction works. Importantly, the guidance stresses that moving on to Phase 2 (Soft Start, only where physical distancing can be maintained) the actual re-commencement of non-essential work on sites, will only happen “after consulting with the Government to ensure that it is safe to do so in line with public health advice”. In short, while the construction sector has been given the green light to prepare sites for a soft start with physical distancing in place, the updated guidance does not yet give approval for the actual carrying out of non-essential construction works. Given the SG’s approach to the release of lockdown, this is understandable as it is clearly indicating that it is yet to take a decision that “it is safe to do so”.

It is, however, expected that that decision is likely to come soon, perhaps as early as next week. Previous indications have been that the SG would prefer to be able to give a period of notice of two weeks before works begin on sites. It is not clear if any such period might now be running from 28 May! This is against the background that industry insiders are aware that many contractors have been gearing up for a possible re-start of works on sites from 1 June. The guidance certainly doesn’t countenance a re-start to operations on site on 1 June.

In this connection, it should perhaps be noted that the guidance also makes clear that the Health and Safety Executive, the regulator of Health and Safety in workplaces, will be monitoring the position on building sites and action may be taken by way of enforcement notices etc. in order to ensure that physical distancing requirements, which are part of the legal requirements, are complied with on building sites.

We will have to await further updates from the SG in relation to its Guidance. Meantime the new guidance available on the SG website directs us to the website of Construction Scotland where we can find (a) the construction industry re-start plan in more detail and (b) a document entitled ‘Working on site during the COVID-19 pandemic – Construction Guidance’ which now gives updated practical advice on how construction works should be carried out, where permitted.

So, progress of sorts, and it looks as if we are on the start line waiting for the starter’s gun. We will update you further as things develop.