Select Committee on Regulatory Reform Minutes of Evidence


Examination of Witness (Questions 46-59)

15 JUNE 2004

PROFESSOR ROSEMARIE EVERTON

  Q46 Chairman: Good morning. Welcome to our Committee. We are quite an easy Committee, so you have nothing to worry about. If there is anything you would like to say in opening comment, by all means do so.

  Professor Everton: Thank you. That is courteous. I would simply thank you all for the opportunity to come before you. It is appreciated.

  Q47 Chairman: Thank you. We understand that you are making your representations to us in a personal capacity and not as a member of the Fire Safety Advisory Board, but I wonder if you could nevertheless give us your assessment of the value of how the Legislation Sub-Group of the Board took account of the consultation responses. Did it take appropriate account of them in drawing up the proposal?

  Professor Everton: May I say that during the time I was a member of the Board and a member of the Sub-Group I was indeed impressed by the care and attention which was given to the whole process. I thought it was done with utmost attention and in detail.

  Q48 Mr Brown: Good morning. I have a fairly simple question but I suspect it is not a simple answer that you will give me. How important do you think it is that fire safety enforcement is not only adequate but seen to be adequate?

  Professor Everton: I believe that is most important. I know that I am not alone in that view because it is a view which I have heard expressed while I was a member of the Board and Sub-Group. I think that if there is no public assurance or the public assurance is not at the level which would be considered by some desirable, then, given the nature of this subject, one could argue that the system in place would have a certain defect. I think it is important.

  Q49 Chairman: In the context of the order as it stands, how do you think the enforcement mechanism could be made more demonstrably adequate?

  Professor Everton: I think within the order as it stands it is not easy. If one looks at Article 26 of the Order, which runs, "Every enforcing authority must enforce the provisions of this Order and any regulations made under it . . . ", etc etc, and then it goes on to say, " . . . must have regard to such guidance as the Secretary of State may give it", you have there a very, very broad kind of provision. If one were just with those words and no more then I think one would be lacking the need, which I believe should be met, for a statutory duty to have in place and develop an enforcement programme, and that in that programme should be a method of determining frequency of inspections. That is missing from that. If one then is caught by those words and they cannot be changed to incorporate such a venture, then I think all you can do is rely upon the guidance. When one considers guidance as it exists, one is looking out of the arena of this Order and into the arena of the new Bill[8]and there you will find a duty on fire authorities to have regard to guidance which the Secretary of State may issue. You then take yourself to look at the guidance and you find in Circular 29 there is quite an amount of guidance on how a fire authority would set about an inspection programme which was risk-based. The only thing is—when it comes to the crucial bit, as I see it personally, about the frequency of inspections—the guidance says that should be at the discretion of the fire authority, so to speak. The ball is put in their court. That is okay if you have got a fire authority with the resources, the expertise, the commitment and the background experience to be able to set up a programme which does have a sufficient frequency, but that depends on a lot of things. My question is: would those attributes always be present? That makes me wonder. It takes me in a circle back to the point which you raised of the need for public assurance. I apologise for the convoluted excursion.

  Q50 Chairman: That is very helpful in going through that (and I used to be shop steward in a factory before I became a Member of Parliament) because to some degree there are comparables with health and safety legislation. If there are not the inspections and the body to actually enforce, to make sure, you can have all the best provisions there but there are loopholes if it is not enforced.

  Professor Everton: May I say I entirely agree. There was once the comment made many years ago, I believe, in the health and safety arena that if you do not have sufficiently robust enforcement which is publicly seen as such, then what you have got, however artistic, is an essay in ethics. I quote; not mine.

  Q51 Dr Naysmith: I would like to ask about the concept of validation, which is something you have written on and you have written to us about as well. I notice that it was first introduced in government circles in the Fire Safety Legislation for the Future consultation document in 1997. The interesting thing is it now seems to have been dropped and not included in this legislation. Is that right?

  Professor Everton: Yes, indeed it did make its appearance, did it not, in the Fire Safety Legislation for the Future consultation document in November 1997. May I take the various points which you have raised?

  Q52 Dr Naysmith: It would certainly be useful if you could explain this, particularly how it applies to high risk premises.

  Professor Everton: That is the first point—that my fears are for the high risk. There is another excursion in that, but we will not dwell upon it, of how do you define "high risk"? That is a subject that could be explored on its own but, for the moment, for the purposes of the discussion let us say it might be possible to define "high risk". Then you can ask yourself: what about validation in respect of it? In the 1997 document, as I guess you have noticed, it is very clear that for high risk premises there is a desire for this validation. It is not certification—that the document makes very clear. It is a process which incorporates the risk principle and the goal-based principle so, therefore, should be acceptable as such. It brings into the equation what I suspect the French would call the benefit of a second pair of eyes—validation; and it has the benefit to my mind of bringing the employer, occupier, owner, whoever he should be, and the fire authority into close contact. Historically I believe it is the forging of the link between the regulator and the regulated and what that link is like that has mattered. I acknowledge that validation (validation) has been dropped as an idea. I can understand the reasons why. You could argue that with the risk system you have got the continuing duty, and you could argue that a validational system in a sense either cuts across it or is superfluous to it. Those counterarguments are taken on board by the consultation document and, indeed, dealt with and it is shown how the two ideas could fit together.

  Q53 Dr Naysmith: Are you talking about the 1997 document?

  Professor Everton: Yes, the 1997 one. Then you come to the point in the present climate of regulatory reform and the possibility, which of course would be argued, that validation imposes a burden. So then one comes to the questions of proportionality, balance of public and private interests, a fair balance etc etc. I would argue that I would acknowledge there is a burden, but that there are countervailing benefits which could be argued to bring you within the requirements of the regulatory reform regime. It is, I know, very personal and I am grateful for the opportunity to put it forward, but I believe perhaps one day there may be a need to re-visit the idea of validation; and if it could be kept alive as a notion and not simply buried that would seem to me to have potential value.

  Q54 Dr Naysmith: I have quite a strong interest in validation because in my constituency, in Bristol, there is a very high risk area along the Severn estuary, which has a lot of chemical firms, refineries and docks, which is widely recognised as an area where there is a high risk.

  Professor Everton: Indeed, yes.

  Q55 Dr Naysmith: The concept of validation would apply to that, would it not?

  Professor Everton: I think it would.

  Q56 Dr Naysmith: How do you think that your ideas differ from what will happen to what is called the "Severn site" in the future under the new regulations?

  Professor Everton: My fear is this: with the new regulations, the new Order, you have a continuation and an expansion of the 1997 workplace regs[9]where the prime responsibility for fire safety is put upon the individual. I know that there is an obligation, with certain exceptions, to appoint a competent person to assist. Albeit that that is so, concerns still remain for me, and they are these: if you have this shift of culture, which is a continuing shift, and will lack the safety net of anything like certification, then what you are doing is putting the prime responsibility for safety upon the individual. It is, therefore, to an extent not the same kind of responsibility that the fire authorities have in the past discharged under the Act. That leads me to contemplate two points: first of all, that many people, according to a survey done by CACFOA[10]did not even know they had got obligations under the 1997 regs[11]let alone what they should do about them. So there is going to have to be a great deal of publicity, and I understand that a great deal of money will be put into that. Then, alongside the need for people to be aware and to have the capacity to do what is asked, there is a question of whether a person will indeed be competent; what will be their qualifications of competence; and all that then set alongside the problems perhaps for smaller fire authorities as to how they will resource and sustain an enforcement programme which would be publicly realisable as robust. Those are my fears.

  Q57 Dr Naysmith: Finally, it has been really interesting listening to your explanation, but you did not answer my first question. Why do you think it has been dropped? Could I suggest it might be because it would introduce a heavy burden? Is that misquoting or misjudging what you are saying?

  Professor Everton: I had better be very careful because it is a most sensitive question. I would suspect that there are many reasons for dropping an idea which would seem to be very good and very relevant, particularly for such places as in your own constituency. I am not trying to duck your question, but the reasons I think lie beyond the province for detection of a mere academic lawyer. I would suspect we could put many adjectives on that.

  Q58 Dr Naysmith: Have a go!

  Professor Everton: Of course you can advance good and cogent legal reasons and rest on them. The fact that they have come from Europe at this time in the past few years might be, as it were, most convenient. You could advance legal reasons. Alongside surely must be economic reasons. Perhaps we cannot afford any longer to have a Fire Precautions Act. Not only are there many who say it is old-fashioned, but perhaps it simply cannot be afforded. Then, of course, there must be the political reasons—that this is giving power, as it were in the view of some, away from the centre to the locality. The history of fire precautions law is of course a history of tension between the centre and the locality. I do not know which one it is, but I guess it is a mixture.

  Q59 Chairman: Would validation be inconsistent with the requirements of the relevant European position?

  Professor Everton: If we go back to the consultation document in 1997—and bearing in mind that in that same year the workplace regulations[12]were being brought forth, and if we bear in mind that those workplace regulations are on the European risk-based principle, and in 1997 it was seen that validation could sit alongside(s) for high risk—then I would stand to be corrected by the Government lawyers, but I cannot off the top of my head think of anything which would say the European overriding requirement has changed such that validation could not be accommodated. I do not think so, but the Government lawyers might say I am wrong—but I do not think so.


8   The Fire and Rescue Services Bill (HC Bill (2003-04) 38) Back

9   i.e. The Fire Precautions (Workplace) Regulations 1997 (as amended). Back

10   The Chief and Assistant Chief Fire Officers' Association (now CFOA). Back

11   See footnote 2 above. Back

12   See footnote 2 above. Back


 
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