Examination of Witness (Questions 1-15)
15 JUNE 2004
MR GLYN
EVANS
Q1 Chairman: Good morning, may I welcome
you to this morning's session of the Regulatory Reform Committee.
We are here to scrutinise the proposals for the Regulatory Reform
(Fire Safety) Order 2004 which the Government laid on 10 May.
The Committee's job is to assess the proposal for the order against
tests laid down in the Regulatory Reform Act and in our Standing
Order. At the end of the process we will recommend whether the
draft Order should be laid before Parliament unamended, whether
it should be proceeded with or whether it should not be proceeded
with. We have received a number of submissions on the proposal.
We have decided to take oral evidence from those who have made
submissions to us and in a fortnight's time we will be taking
evidence from the Parliamentary Under-Secretary of State in the
Office of the Deputy Prime Minister. Phil Hope will be appearing
before us on 29 June. I think that clears the procedures. Could
I welcome you, Mr Evans. You are very welcome. We have received
your papers but I believe that before we go on to questions you
might like to make a few opening comments.
Mr Evans: Thank you very much,
Chairman and members. I am here today representing the Fire Brigades
Union. Sometimes our reputation precedes us but I wish to assure
the Committee that we are here today as a long-term player in
the fire safety field, in the field of fire safety legislation.
Our only agenda here today is to try as far as possible with yourselves
to ensure that what comes out of the Regulatory Reform Order is
good law in England and Wales and improved fire safety for the
general public, business and, indeed, for the safety of fire fighters
in England and Wales. That is our only concern and I emphasise
that to you.
Q2 Chairman: Thank you. That is a very
positive statement and we very much welcome you on that basis.
Could you give us the union's views on the way the process has
been conducted so far?
Mr Evans: The process has been
an extremely long metamorphosis. The question really of a Fire
Safety Bill has been going on from the early 1990s. It was overtaken
by events in Europe with the introduction of the Framework and
Workplace Directives and the requirements that those placed. By
1997 the question of a Fire Safety Bill was very much to the forefront
of the thinking of the incoming government and of course it gradually
translated into the order that you see before me now. So it has
been a very long process. It has been through many, many committee
stages, initially with the Home Office, then the Department for
Environment, Transport and the Regions, then DTLR, and now finally
the Office of the Deputy Prime Minister. So the arguments, the
proposals and the principles upon which the order is based are,
shall we say, well exercised and have been well argued over the
years. I think there has been a long delay between, shall we say,
the completion of the final ODPM Committee's work on the order
itself and its presentation now. It has been over 12 months since
the ODPM Legislative Committee last met. To a certain extent it
has been overtaken by events which occurred with the modernisation
agenda for the fire service, the Fire and Rescue Services Bill,
the Framework Document, the Government's White Paper on the Fire
Service, so there has been a sort of time stagger, I suppose,
of around 12 months between the time the Committee commented and
the time we are at now, but the consultation process has been
well undertaken, I think.
Q3 Chairman: Subject to the points you
have put in your submission to us, do you think the Department
has taken appropriate account of the issues that you raised in
your response to the consultation?
Mr Evans: I think they have taken
into account many of the issues. The issues we put to you in our
submission, Chairman, are those issues which perhaps we feel we
have failed to convince the ODPM that they should investigate
further.
Q4 Dr Naysmith: Good morning. Perhaps
we could explore one or two of those points. In your response
to the consultation you wanted the proposed legislation to retain
a requirement that building plans should, where appropriate, be
incorporated into a fire safety risk assessment. Are you happy
that this concern has now been addressed?
Mr Evans: I think the quick answer
is no, not entirely. Could I give the Committee a quick background
of how we came to our submission to the consultation paper?
Q5 Dr Naysmith: If you could say why
you are not happy.
Mr Evans: Yes. We had four gatherings,
which were extremely well attended and all were serving fire safety
officers. One of the things they were particularly anxious to
retain was the principle of plans in terms of risk assessment,
both for the protection of the company or the individual on whom
the risk assessment requirement fell and also for the maintenance
of standards, I suppose, so that people could easily see if something
had changed. You will not find anywhere in the order itself a
requirement for plans as forming part of a risk assessment. That
is of concern to us. In so far as there is no stated requirement,
then, no, that recommendation has not been met. It may be that
a fire and rescue authority, if they were to issue an enforcement
notice, could ask in complex buildings—a building, perhaps,
of this nature, which has many corridors, many staircases, many
passages and much to be considered in its fire safety risk assessment—that
that risk assessment should be accompanied by a plan. It is a
matter of conjecture that will have to be tested in law. We say,
"Why do so? Why risk the fact that you have to test something
in law, when in fact you could include it now within the purview
of the order?" You are effectively replacing the Fire Precautions
Act which has served the UK well for 30 years, in which it quite
clearly stated a requirement for the provision of plans, and the
plan provides a record of the measures provided for the protection
of the occupants of a building. The concern we have is that this
is not translated through into the Order. There is a potential
through legal action to require the provision of plans, but why,
we would say to you, do you need for a fire and rescue authority
potentially to have to take somebody to law to gain a set of plans
which reflects what they have done in their building?
Q6 Dr Naysmith: You say that there is
an existing requirement for plans, is that complied with at the
moment?
Mr Evans: Yes. All fire certificates
that are issued currently by fire and rescue authorities invariably
contain a plan which shows in detail the measures that are contained
in the building. It is one of the questions we asked in our consultation
response: What will happen to these plans? because they are valuable
documents. Those buildings which currently hold fire certificates
may well show their fire certificate in the future as part and
parcel of their fire risk assessment. They may say: "Look,
this is how it was, this is what we have done—it is shown
on this plan—and here is our written assessment to cover
it" and it can be easily seen, plus can any changes or alterations
to the building layout of fixtures and fittings.
Q7 Dr Naysmith: Perhaps that is something
we will take up with other witnesses later on. Could I look at
another point that when you were consulted you raised, and that
is the concern you demonstrated about the removal of specific
fire safety protection from local Acts. You asked Ministers to
demonstrate that an equivalent standard of fire safety could be
delivered via the new proposals. Are you now satisfied that safety
levels will be maintained in this respect?
Mr Evans: This to a certain extent,
Mr Naysmith, goes into another issue that is within the document,
the caveat "where necessary". The Government is dealing
with this issue in two ways. Those parts of local acts which impact
upon the building construction or the method of design and construction
of a building are being dealt with through the Buildings Regulations
or are dealt with through the review of a part of the Buildings
Regulations which has just commenced with the buildings division.
Those requirements in local acts which refer primarily to the
provision of means of escape and to fire fighting equipment will
be dealt with by the Regulatory Reform Order. In many cases these
are finite requirements. A fundamental tenet of our fire safety
law since the 18th century has been two fold: that people should
be able to get out of a building if it catches fire for any reason;
and there should be fire-fighting equipment provided in that building
for the occupants to use if it is safe for them to do so, to deal
with a small fire before it becomes a big one. Many of the local
acts that are listed in the rear of the RRO contain these provisions,
but, as I say, they are quite definite provisions. Many of them
say, "There shall be adequate means of escape provided; there
shall be fire-fighting equipment suitable to the risk." None
of them contains the caveat "where necessary". It is
a direct requirement. Our concern hinges on this caveat "where
necessary". That may seem to the members of the Committee
a small issue. It is not. In fact, it is another issue that may
well be contested in law, and, once again, we would say that it
potentially could lead to a lowering of existing standards. That
is the basis of our argument, Dr Naysmith.
Q8 Mr Lazarowicz: You have concerns that
the draft order in article 26 places enforcing authorities under
a general duty to enforce the order and the regulations made under
it. Could you explain in more detail why you think that provision
in the draft order is not adequate?
Mr Evans: This is a problem which
has a multiple background. The order requires fire authorities
to enforce the act. It requires them to act in accordance with
such guidance as the Secretary of State may issue. It does not
require them to cause premises to be inspected. This is an argument
that goes back some considerable time and has its background in
the debates that took place around the Bradford City football
ground tragedy in 1985. I think it is recorded in the debates
about that fire and the inquiry that took place afterwards that
concern was expressed that in the 1971 Act there was no requirement
for fire authorities to cause premises to be inspected. They had
to enforce the law but nowhere did it say they should inspect
premises. As a result of that, section 15 of the Fire Safety (Sports
Grounds) Act amended the Fire Precautions Act to introduce the
words "cause premises to be inspected". It also introduced,
if I remember, the words "shall act in accordance with the
guidance the Secretary of State has issued." No Secretary
of State has ever issued any guidance, nor have they ever introduced
section 15 of the 1987 Act. Although "cause premises to be
inspected" appears in some copies of the 1971 Act, it has
never been enacted. The real reason—and you may very well
say, "Well, he would say that, wouldn't he?"—is
potentially because it causes government to set a resource allocation
for fire authorities. If they are to cause premises to be inspected,
then they have to employ the staff to do so. The concerns that
we have on the Fire Safety Order is it replicates something that
has already been discussed in detail previously following a tragedy.
The situation agreed within the committees was enforcement in
terms of public assurance on the removal of fire certification.
Because when this Order goes through, the Fire Precautions Act
1971 will be repealed and therefore the procedure of issuing fire
certificates to buildings will cease, and, whatever one may think
of fire certification in terms of it being bureaucratic—and
it is—it has been extremely successful and it is well liked
by business because it gives them a document which says that their
building is safe. In actual fact there are arguments about that
because fire certificates tend then to be cast in tablets of stone
and you need a more dynamic system. The committee decided that
the critical factor in assuring the public was enforcement: the
public need to be able to see that fire and rescue authorities
who are operating as enforcers for the order are in fact doing
that, and that they should prepare and publish their fire safety
enforcement programmes. This would not be, it was intimated, any
great deal, but would give to the public that they serve an indicator
of how they intended to carry out their fire safety enforcement
duty and programme. That duty is not replicated or has not been
put into the Order that we can see. That is why we have that concern.
I emphasise to you, ladies and gentlemen, that it was an issue
that was agreed by the whole of the committee that discussed that,
which included representatives from business organisations as
well.
Q9 Mr Lazarowicz: I can see how a duty
to inspect is quite a specific duty which can easily be appreciated
and hopefully applied, but you are asking for a duty to institute,
develop and maintain an enforcement programme. Is that not in
itself a bit vague? Is there not, as you yourself pointed out
in reference to fire certificates, a need to make the legislation
more able to deal with change in circumstances? Would a duty accompanied
by a guidance code of practice actually achieve the dynamic protection
you are looking for?
Mr Evans: It would indeed. I have
no difficulties at all with that suggestion. I am saying to you
that the general consensus at the time—and, as I said earlier,
it was over 12 months ago—was that this was possibly the
best way it could be achieved if a general duty were not forthcoming.
Q10 Mr Brown: Good morning, Mr Evans.
I know in relation to fire-fighting equipment and emergency exits
you made reference to the terminology "where necessary"
and I know the FBU have claimed that that could be a recipe for
disaster. Do you accept that the proposal is intended to apply
rather more broadly than existing legislation, in that it extends
fire safety requirements to the self-employed and the voluntary
sector as well?
Mr Evans: It is a very interesting
question you pose: how wide is the existing law? The voluntary
sector would be caught probably. If you are talking about something
like, let us say, charity shops, then they are shops and they
are caught currently by the FP Act. Because it uses the old definition
of shops which is provided in the old Offices, Shops and Railway
Premises Act, they would be caught. The question then is: Do they
require a fire certificate or not? because a fire certificate
steps up, if you like, the fire safety measures that are in the
building. There is, however, a section within the Fire Precautions
Act which is Section 9(a) which applies to small buildings, buildings
where there are not more than 20 employed or not more than 10
elsewhere than on the ground floor (which are the criteria for
certification under the 1978 Order, I think it is). They would
be caught by section 9(a). Going back to the evidence I gave previously,
there are two requirements under section 9 now. One is that there
should be adequate means of escape. The other is there should
be adequate fire-fighting equipment. There is no caveat of "where
necessary". The voluntary sector, from that point of view,
is caught. In the other areas, it is hard actually to think of
a premises that is not caught by some form of fire safety legislation
or another, if it is not caught by the Fire Precautions Act or
the Workplace Regulations. Therefore invariably they require the
provision of means of escape and fire-fighting equipment. The
question in terms of fire-fighting equipment is: "How much
and of what type?" It is not: "Should they have it at
all?" which is the concern we have about articles 13 and
14. They would indicate that there may be instances when they
can have nothing. That is because of the term "where necessary".
Our argument is that term does not appear anywhere in the Workplace
Directive. I cannot find—and I do not think you will find—the
words "where necessary" anywhere in the Workplace Directive.
I think you will find that the Workplace Directive is quite specific,
in terms certainly of emergency exit routes: that they should
be kept clear and unobstructed at all times. In the case of fire-fighting
equipment, there is an absolute requirement, we see, for fire-fighting
equipment, and, as I say, what is at question is not whether they
should have it but what they should have and how much. That depends
on the risk assessment the responsible person makes. Does that
answer your question?
Q11 Mr Brown: I think it does. Could
I just ask you a supplementary to that. Currently, to what extent
do you think those who are self-employed and those who operate
within the voluntary sector provide sufficient fire protection?
Mr Evans: Yes, I omitted the self-employed.
The self-employed, if they are part and parcel of a certified
building under the 1971 Act, are caught. I would not say to the
Committee that it was a great problem. It does, however, leave
the potential for a hole in the cover in a building if the self-employed
and the voluntary are not caught by the order. You could, for
instance, in a multi-storey building have employed, employed,
employed on three floors; self-employed on another floor; employed,
employed, voluntary sector, say, on the ground floor, and you
would effectively have holes in the legislative fire safety cover.
That is the concern we have. There is a need to ensure, particularly
in multiple occupied buildings, a continuity of cover that somebody
is responsible and somebody cannot hold their hand up and say,
"Yes, it is very interesting but we are not going to do it
because the law does not apply to us," which might in turn
then jeopardise people in other areas.
Q12 Mr MacDougall: Taking you on from
that point, I suppose examination should be about how much independence
the self-employed and voluntary sectors have in terms of making
a decision on the issue of whether or not fire-fighting equipment
is required on the premises. What would your opinion be on that
issue?
Mr Evans: It depends, I guess,
on whether they are simply putting themselves at risk or whether
they are putting others at risk. If they are self-employed people
but they invite members of the public to their premises for whatever
reason—which are covered under the term "relevant persons"—then
they owe a duty of care to those persons. I do not think the fact
that they are self-employed should necessarily exempt them from
the law if they are, if you like, placing at risk a third party.
I have to say, Mr MacDougall, I have never, ever found a problem
with the voluntary sector. In most cases they are quite anxious
to comply.
Q13 Mr MacDougall: I suppose it comes
down to the fact of who is the responsible person. At the end
of the day, if the responsible person carries out this risk assessment
properly and applies its provisions appropriately, will this not
in itself ensure that an appropriate level of protection has been
put in place?
Mr Evans: It may not, but it will
ensure that at least consideration to the problem has certainly
been given. If you take the average high street charity shop or
voluntary sector, which is, I presume, what you are predominantly
thinking about, one guesses that the fire safety measures—of
course, depending on the risk generated—would be fairly
simple. If they have a front and back door, they have a means
of escape, and if they have probably one or two fire extinguishers
then probably that would suffice for their risk assessment.
Q14 Chairman: Are there any other points
you would like to add that you think we have not asked about?
If so, you have this opportunity.
Mr Evans: There is one other issue.
I would draw one thing to your attention. It is in article 32(1),
which says, "It is an offence for the responsible person
to (a) fail to comply with any requirement or prohibition imposed
by articles 8 to 21 and 38 (fire safety duties) where that failure
places one or more relevant persons at risk of death or serious
injury in case of fire". The term "places one or more
relevant persons at risk of death or serious injury in case of
fire" is a term that is in the Fire Precautions Workplace
Regulations but is not a term that you will see in the Fire Precautions
Act. It is a term that concerns us because it requires the fire
and rescue authority in taking an enforcement action to prove
there has been a failure to comply and then that failure to comply
has placed one or more people at risk of death or serious injury
in case of fire. Our existing fire precautions law, the Fire Precautions
Act, does not require the enforcing authority to demonstrate that
people have been put at risk, merely that there has been a failure
to comply, usually with a fire certificate, which is, I have to
say, a very clear cut-and-dried issue: if it shows a fire door
on the plan and on inspection there is not a fire door there,
then that strictly speaking is an offence. In fact, most fire
authorities would simply deal with it by issuing a notice and
asking the person concerned, the responsible person, to return
the fire door to that position. But they have the option to prosecute
in, shall we say, cases where there are quite flagrant breaches
of the law and this has happened on occasion. Under the Fire Precautions
Act you can actually add a number of offences. You might find
there is a list of offences—for instance, failure to maintain
fire-fighting equipment, failure to maintain emergency lighting,
fire doors removed, issues of this nature—but none of them
requires the fire authority then to demonstrate as well that by
doing so people have been placed at a serious risk of death in
case of fire. I would say to you, ladies and gentlemen, that you
should perhaps consider that, whether or not that phrase is necessary,
whether or not it is simply necessary for the fire authority to
allege there has been a failure to comply with a requirement of
prohibition of any article, and let the courts decide whether
or not this is of sufficient seriousness to warrant whatever punishment
they are going to give or not, as the case may be. But for the
fire authority to have to demonstrate that it "places one
or more relevant persons at risk of death or serious injury in
the case of fire" plus there has been a failure of compliance
. . . From our point of view, if there has been a failure of compliance,
then by inference people have been placed at risk. Why do we need
to demonstrate as well? I would ask you to consider that, Chairman.
Q15 Chairman: We have taken note of that.
It will be recorded in the proceedings. I can tell you that we
have asked the Department a number of questions, and, as we indicated
earlier, we will be having the Minister before us in two weeks'
time. Could I thank you for coming along and giving us your assistance
this morning. The final thing I would say to you is that, if,
when you go away—and you may be staying to listen to the
others give evidence—there is something that comes to your
mind and you would like to write to us on it, by all means do
so. We have a tight time limit. We cannot drift on for a year
on this committee; we have to publish a report within 34 days
or something like that, so I can assure you we have to make progress,
but by all means write to us if something comes to your mind.
Thank you very much.
Mr Evans: Chairman, may I thank
you as well for your courtesy.
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