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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