Memorandum from the Fire Brigades Union
1. INTRODUCTION
1.1 The Fire Brigades Union (FBU) is the
primary fire service trade union in the United Kingdom. We represent
over 95% of all serving fire fighters and fire control staff up
to the rank of Assistant Chief Fire Officer employed by local
authority fire services throughout the UK. Our members provide
emergency fire and rescue cover and protection for the general
population and they deal daily with the many and varied incidents
involving fires and rescues and assistance to the general public
that they are called to.
1.2 For many years the FBU has also been
and remains a main and often leading player in the promotion of
fire safety and fire prevention measures both through the education
of the communities that our members serve in the dangers of fire
and through the enforcement of fire safety legislation by the
fire services within the UK. We are firm believers in the old
adage that prevention is better than cure and have always welcomed
the involvement of our members in promoting fire safety measures
and enforcing fire prevention law.
1.3 Fire services in the UK have been involved
in the enforcement of fire safety legislation since 1961, when
they were first given the duty to issue fire certificates in factory
premises falling within the remit of section 40 of the Factories
Act 1961. The Factories Act 1961 was a consolidation of three
previous Factory Acts and came about as the direct result of the
Keighley Mill fire in Yorkshire in 1956 where eight workers lost
their lives in a fire which engulfed a multi storey woollen mill
building. Since that time and sad to relate most of the subsequent
fire safety legislation currently in force in the UK has been
introduced as a result of fire tragedies.
1.4 As a result of the lengthy involvement
of our members in fire safety legislation we have developed a
deep understanding of fire safety law and the matters that it
should address. It is therefore the experiences of our members
over the last 43 years that we bring to the discussions regarding
certain elements of the proposed Regulatory Reform (Fire Safety)
Order 2004 that concern us.
1.5 We would want the members of the Regulatory
Reform Committee to understand that the FBU fully supports the
principles underpinning the proposed Regulatory Reform (Fire Safety)
Order 2004. The Order originally started life as the FBU's Fire
Safety Bill. That Bill which received approval for a Second Reading
in 1996 but that parliamentary process was subsequently overtaken
by the outcome of the 1997 General election has undergone a long
metamorphosis to now appear as the Fire Safety Order.
1.6 The proposed Regulatory Reform (Fire
Safety) Order 2004 has been seven years in development and the
FBU has been party to all the Committees which have sat over that
period to consider the proposals initially for a Bill and then
an Order. We have not missed a meeting of any Committee which
met to discuss this matter and our representation upon those Committees
has always been completely consistent.
1.7 Our aim in presenting evidence to the
Regulatory Reform Committee is to ensure insofar as we are able
that England Wales will have good fire safety law which will successfully
replace that which exists without lessening the present standards
of safety and is capable of surviving for at least another thirty
years. To that end we wish to present those matters which we believe
require further consideration and where we have been unable to
convince those responsible for drafting the Order in the Office
of the Deputy Prime Minister of the need to address those issues,
or those issues that we believed were to be addressed within the
Order, but have now disappeared from it.
1.8 We shall now set down below those matters
of concern to us which we believe that the Regulatory Reform Committee
should give consideration too. We would also welcome the opportunity
to appear before the Regulatory Reform Committee to explain our
concerns.
2. ENFORCEMENT
OF THE
REGULATORY REFORM
(FIRE SAFETY)
ORDER 2004
2.1 Article 26 deals with enforcement of
the Order and places a duty upon every enforcing authority to
enforce the provisions of the Order and any regulations made thereunder
and may appoint inspectors to do so. In performing that duty the
enforcing authority shall have regard to such guidance as the
Secretary of State may give it. Article 26 therefore mirrors quite
closely the provisions of section 18 of the Fire Precautions Act
1971 which are currently in force.
2.2 However, simply placing a duty to enforce
the Order without providing either a duty to carry out inspections,
or to develop an enforcement programme to do so, is not sufficient
in our opinion to preserve the current level of public safety
or equal the current requirements of the Fire Precautions Act
1971 insofar as it relates to the issue of fire certificates.
In section 5(3) of the 1971 Act the enforcing authority is under
a duty to consider whether or not in the cases of premises which
qualify for exemption from holding a fire certificate to grant
an exemption and if they do not so agree they must inspect the
premises and commence the fire certification process.
2.3 The issue of fire certificates or the
grant of exemptions from fire certification under the Fire Precautions
Act 1971 also gave clear and measurable indication of the enforcement
activities of the fire authorities. Once this process is removed
then no equivalent measure or indeed target will exist and public
confidence in the Order could well be jeopardised. It should be
noted that there are no national targets in force or proposed
that we are aware of relating to the fire safety enforcement activities
of fire and rescue authorities once the Best Value Performance
Indicator (BVPI) for the issue of fire certificates is withdrawn.
2.4 This matter was discussed at length
in the Fire Safety Legislation Sub Committee of the Fire Safety
Advisory Board (initially created under the auspices of the Home
Office and finally removed by the Office of the Deputy Prime Minister).
The issue of public confidence in the Order and the maintenance
of public safety once fire certification was removed was a major
concern. It was agreed that if public confidence in the effectiveness
of the Order in ensuring continuing public safety once fire certification
was removed was to be ensured then this would rest entirely upon
the level of enforcement activities of the enforcing authorities.
2.5 It was proposed that to ensure public
confidence in the effectiveness of the Order in ensuring continuing
public safety once fire certification was removed the enforcing
authority should be placed under a duty to institute, develop
and maintain an enforcement programme. The enforcement programme
would include details of how the authority might determine the
frequency with which it will inspect premises to which the Order
applies in order to monitor and encourage compliance with the
law. It was also proposed that the enforcement programme in terms
of frequencies and numbers of inspections might be made public
so that the general public could see that the fire safety activities
of the enforcing authority were properly focused and not diminished.
2.6 This proposal was circulated as part
of the Consultation Paper entitled "A consultation
document on the reform of fire safety legislation" issued
by the Office of the Deputy Prime Minister (ODPM) in July 2002.
In the subsequent responses received by the ODPM to this proposal
26 respondents were in favour of the proposal and there was not
one opposed to it. It was assumed therefore that a duty would
be contained in the Order which would require an enforcing authority
to develop and publish an enforcement programme as described in
paragraph 2.5 above. This proposal, for which there is considerable
support, has not been implemented within the Order.
2.7 We believe that if such a provision
is not made within the Order then there is a risk that the Order
will fail by virtue of section 3(a) of the Regulatory Reform Act
2001 as it removes a necessary protection currently enjoyed. We
recommend therefore that a duty as described within paragraph
2.5 above be incorporated into the Order at this time.
3. DEFINITION
OF ESCAPE
3.1 We are concerned for the following reasons
that the Order fails to define the term "escape".
3.2 As a result of problems experienced
by fire authorities in enforcing the Fire Precautions Act 1971
regarding the termination of means of escape routes provided from
premises, the 1971 Act was amended to define the term "escape".
The reason for this was simple, the 1971 Act initially dealt with
escape from premises which were defined as "buildings"
or "parts of buildings" so once the person escaping
from a fire was at an exit from a building they were deemed to
be safe. In real life however, it was found that on occasion some
exits which afforded a means of escape in case of fire from the
building they served often led into an enclosed courtyard or area
from which there was no further escape.
3.3 In those instances the fire authority
was powerless to impose any further requirements upon the owner
or occupier as their powers ceased at the external walls of the
building. This anomaly was removed from the 1971 Act by the following
definition which was inserted into the 1971 Act as section 5(5)
of that Act by virtue of section 4(2) of the Fire Safety &
Safety Of Places of Sport Act 1987:
In this Act "escape", in relation
to a premises means escape from them to some place of safety beyond
the building which constitute or comprises the premises and any
area enclosed by it or enclosed with it; and accordingly for the
purposes of any provision of this Act relating to means of escape,
consideration may be given to, and conditions or requirements
imposed as respects any place or thing by means of which a person
escapes from premises to a place of a safety.
3.4 The definition of "premises"
in the Order is wider than that of "premises" in the
1971 Act and means "any place". It can therefore be
argued that there is no need to define "escape" for
the purposes of the Order however, for the avoidance of doubt
and to remove any possibility of the problems experienced with
the 1971 Act being replicated we would recommend that it is. A
suggested wording is set out below:
"escape" in relation to premises
means escape from them to some place of safety beyond the premises
and any area enclosed by it or enclosed with it; and accordingly
for the purposes of any provision of this Order relating to means
of escape, consideration may be given to any place or thing by
means of which a person escapes from premises to a place of a
safety.
4. ARTICLE 13
AND ARTICLE
14
4.1 In articles 13 and 14 of the Order we
see that the words "where necessary" are inserted in
relation to the duties of the responsible person in respect of:
(a)
the provision of fire-fighting equipment (article13(1)(a)),
and
(b)
ensuring that routes to emergency exits from premises
and the exits themselves are kept clear at all times (article14(1))
We believe that this caveat of "where necessary"
inserted in relation to these specific duties to be placed upon
the responsible person is both unnecessary and constitutes a lowering
of existing standards and the removal of an existing protection.
We also believe that this caveat is outside the requirements of
the Workplace Directive (89/654/EEC). We further believe that
by doing so Section 3(1)(a) of the Regulatory Reform Act 2001
is also breached.
4.2 We shall deal first with the impact
of the caveat of "where necessary" upon the application
of the Workplace Directive which was previously replicated complete
with this caveat in relation to fire-fighting equipment within
the Fire Precautions (Workplace) Regulations 1997 (as amended).
We complained about this at the time of the introduction of the
1997 Regulations, but were told that it could not be avoided as
the Home Office was under pressure to introduce the Regulations
which were nearly four years behind the specified date for introduction
to avoid infraction proceedings by the European Commission.
4.3 In the Workplace Directive both the
supporting Annexes to it (which set down minimum safety and health
requirements for workplaces used for the first time or already
in use at the time of the Directive) set down the same requirement
in the case of fire-fighting equipment which reads as follows;
Depending on the dimensions and use of the
buildings, the equipment they contain, the physical and chemical
properties of the substances present and the maximum potential
number of people present, workplaces must be equipped with appropriate
fire-fighting equipment and, as necessary, with fire alarms and
alarm systems.
4.4 We believe that it is clear from the
Workplace Directive that workplaces must be equipped with
some form of fire-fighting equipment that is appropriate to deal
with the risks present in the workplace. What is at question is
what the appropriate firefighting equipment is, not that it should
be provided at all. It should also be noted that historically
all UK based fire safety legislation has always required the provision
of fire-fighting equipment in workplaces and similar premises
for the safety of both the person and the mitigation of the effects
of fire.
4.5 By adding the caveat "where necessary"
in relation to firefighting equipment the responsible person may,
as a result of his risk assessment, choose not to provide any
such equipment at all and indeed this has happened already with
the 1997 Workplace Regulations. In view of the fact that the Order
removes the fire safety elements of a number of local Acts that
contain quite clear and unambiguous requirements for the provision
of suitable fire-fighting equipment we believe strongly that a
necessary existing protection would be removed which would breach
Section 3(1)(a) of the Regulatory Reform Act 2001.
4.6 In relation to the matter of the maintenance
of escape routes and emergency exits from obstruction and available
for use we are even more astonished by the insertion of such a
caveat. Article 6 of the Workplace Directive states, inter
alia, the following;
To safeguard the safety and health of workers
the employer shall see to it that;
- traffic routes to emergency exits and
the exits themselves are kept clear at all times
This requirement is then replicated in both
Annexes to the Directive. We are at a loss therefore, to understand
how the ODPM have come to the conclusion that this requirement
which is also a staple and fundamental requirement for UK based
fire safety legislation can be qualified by the term "where
necessary". It really is a recipe for a disaster.
5. ARTICLE 2—MEANING
OF RELEVANT
PERSON
5.1 We are unhappy that the Order effectively
bars fire-fighters from receiving its protection by excluding
them from the definition of a "relevant person". Whilst
we can understand that the responsible person may not be placed
under a duty of care with regard to their safety whilst fire-fighting
as that is the responsibility of their employers and managers,
however we certainly believe that a responsible person should
be placed under a duty of care:
(a)
to ensure that if fire-fighters attend their premises
for any non emergency reason they are treated exactly the same
as any other employee from an outside employer, and
(b)
to offer any assistance that he reasonably can in
terms of advice, information or specialist equipment or personnel
whilst they are attending an emergency incident at his premises,
and
(c)
to ensure that if he introduces hazardous materials
or substances into his premises for the first time or which are
likely to significantly increase the existing risk of fire or
explosion he advises the fire service of the presence, location
and quantity of such materials, and
(d)
to ensure that if he propose alterations to the layout
of the premises that may affect the efficiency or effectiveness
of any fire safety measures provided for the assistance of the
fire service that he consults them before doing so.
5.2 We would ask the Regulatory Reform Committee
to consider this issue and to seek to ensure that fire-fighters
receive the protection of the Order insofar as they consider it
is proper for them to do so.
6. ARTICLE 49—APPLICATION
TO THE
CROWN AND
TO THE
HOUSES OF
PARLIAMENT
6.1 The FBU remains deeply concerned at
the continuation in the Order of the principle of Crown Immunity
from prosecution and the principle that Crown premises should
be the subject of a separate inspection regime by a separate group
of fire safety inspectors that are effectively employed by the
government to those fire safety inspectors employed by the local
fire and rescue authority whose members will then have to fight
any fires or effect any rescues in those premises.
6.2 We accept that it is the stated intent
of the government to remove this outdated anomaly across the whole
range of safety legislation when parliamentary time allows however,
we see no Bill or other statutory proposal emerging on the political
horizon that would indicate to us that this is likely to happen
very soon.
6.3 This issue has been discussed at a number
of levels including the Fire Safety Legislation Sub Group of the
Fire Safety Advisory Board of the ODPM where the proposal to retain
the principle in the draft Fire Safety Order was rejected unanimously
by the members of the Group. This move was then endorsed by the
full membership of the Fire Safety Advisory Board. We understand
that the real problem however rests within government where it
has not been possible to decide whom should assume overall responsibility
for any contraventions of fire or general safety law if Crown
Immunity is withdrawn.
6.4 We believe that the Regulatory Reform
(Fire Safety) Order 2004 offers the first significant legislative
opportunity to remove this outdated and outmoded practice. Clearly
if government and parliament are determined to set their own houses
in order and to seek a parity of legislative involvement with
those in the public and private sectors upon whom they intend
to impose the Order then now is the opportunity to demonstrate
that commitment.
May 2004
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