Examination of Witnesses (Questions 85-99)
29 JUNE 2004
PHIL HOPE
MP AND MR
ANDY JACK
Q85 Chairman: Can I welcome the Minister
this morning? We are interested in the proposal we have before
us. Could you introduce your colleague? Also, I believe you want
to make a few brief comments before we turn to questions.
Phil Hope: This is Andy Jack,
Head of Fire Safety Legislation Branch at ODPM. Thank you very
much for inviting me to give evidence. I hope I can be of help
in your consideration of this Regulatory Reform Order. It is a
major piece of legislation. I think it is possibly the largest
since the Act itself in 2001. You will know the decision to proceed
with the Order was taken several years ago and it was cited as
one of the uses of the RRO procedure during the passage of the
Act. It is an important part of the programme that we are putting
forward to switch the emphasis towards preventing fires from happening
in the first place and putting risk assessment at the heart of
the approach to the work of the service, something that the Bain
Review said to us, and something that we picked up through the
White Paper, which has been recommended through the use of integrated
risk management plans and in particular recommending the Bill
and a new duty of community fire safety as a role of the Fire
Service. In terms of those plans, the fire and rescue authorities
have now all produced their IRMPs[1]and
a consolidation of statutory fire safety legislation on a risk
assessment basis under this Order, together with those new duties
in the Bill to promote fire safety, provides a legislative underpinning
for the development of this whole process. I want to emphasise,
in terms of the Order and the Bill, the two measures are of course
complementary to one another. We decided not to combine them together.
The Government's approach is to use a Regulatory Reform Act procedure,
wherever it is appropriate, whether or not primary legislation
is in prospect. We are doing that both to reduce the burden of
unnecessary bureaucracy, to do things as quickly as possible but
consistently with maintaining the necessary protections and of
course to reduce pressure on Parliamentary business. We did consider
using the Bill to take forward some of the reform of fire safety
legislation but we decided not to. It prevented the Bill becoming
over long and made use of the substantial work that had already
gone into the RRO procedure. That is why we proceeded in this
way and I think it has been quite a successful approach so far.
Q86 Chairman: This is a very large proposal.
It has 52 articles, five Schedules and it is amending or repealing
79 separate pieces of legislation. Do you think that the proposal
is controversial?
Phil Hope: I do not think it is
controversial. This is very much pulling together into one place
all of those various pieces of legislation, Orders and so on from
the past, in a way that will make a great deal more sense to the
world out there. During the consultation process, far from being
controversial, this has been welcomed as being very much a step
in the right direction in terms of making life a lot easier, reducing
burdens on many, but also putting in place this new approach of
risk based assessment. That combination of measures, although
it is very large, does bring together a substantial amount of
otherwise disparate matters.
Q87 Chairman: The consultation exercise
did not see it as controversial?
Phil Hope: No. There were issues
but we worked through the consultation exercise. We had 276 replies
to the 10,000 or so questionnaires and documents that were sent
out. People can see those on the website. We were very encouraged
by the level of response, which was relatively high for this kind
of exercise, and the way that the fire community, the business
community and others have responded and become engaged in the
process. I think we have come up with a set of proposals here
that has a broad consensus of support within the fire community.
Q88 Chairman: Whilst the Bill is not
the responsibility of this Committee, we recognise the Bill is
related. You feel that it would have made too big a Bill if some
of these aspects that we are considering in this proposal were
to have been incorporated in some way?
Phil Hope: Absolutely. The Bill
would have become unduly long and cumbersome. Admittedly, a lot
of this could have been done in the regulations but there would
have been a chance that we would not have been able to do the
kind of thoroughgoing exercise that we have managed to do here
through the RRO, also building on the work of the Regulatory Reform
Order procedure seemed to us to have been a good divide between
the two processes that are working hand in glove, very complementary
to one another. We have achieved the almost successful passage
of the Bill, given the amendments, and we have here a very comprehensive,
well supported Regulatory Reform Order that will do a huge amount
to improve fire safety in the wider community.
Q89 Chairman: We know that some departments
feel that the use of the regulatory reform procedure constrains
them and puts more limits on. There tends to sometimes be more
scrutiny and more consultation as a result of this procedure rather
than if it was done via the Bill. From what you say I take it
that you do not feel as constrained in your Department?
Phil Hope: It would probably be
wrong of me to comment on the views of other Government departments.
We have found this process, which has taken some time because
it has engaged people actively in the process, the business community,
the fire rescue authorities, the Fire Brigades Union and others,
has created more ownership. We have thoroughly explored all the
issues. We have now arrived at an outcome that the wider fire
community are happy to proceed with. Because it complements the
Bill, they can see that it is a drive towards modernising the
fire rescue service and achieving changes that reduce burdens
but increase fire safety, which is a win-win outcome for all concerned.
Q90 Chairman: You would not accept the
view put forward by critics that you could have done more in the
fire safety field if you had done something in a Bill rather than
through this procedure?
Phil Hope: Probably the reverse.
We have managed to combine through the Bill and the Regulatory
Reform Order a lot more than we would have achieved by simply
doing it through the Bill alone. That is our feeling in the Department.
It has been very successful.
Mr Jack: I agree. A particular
advantage of the Reform Order process for us has been the ability
to engage with the Committee where questions have arisen which
would not arise during the course of a Bill. That has been exceedingly
helpful.
Q91 Mr Brown: CFOA and the FBU have both
stressed the importance of building plans in preparing risk assessments
and thereby providing assistance to fire fighters should the need
arise. The proposed Order contains no requirement for plans to
be attached to risk assessments and no power for enforcing authorities
to provide plans. Why does not the proposed Order require relevant
persons to provide building plans alongside their risk assessments?
Phil Hope: The purpose of the
risk assessments is to target activity on those areas of buildings
and properties most at risk. When the Fire Service does its inspections
and looks at those buildings, the responsible person for those
buildings has the responsibility to ensure that the building does
conform to the fire safety regulations. Upon inspection, the authority
does have the ability to check that that is in line with what
is safe and to recommend changes if there are breaches. Ultimately,
they do have the sanction of taking the responsible person to
court if that does not work but we are pretty confident that that
interaction between the fire and rescue authority and the owner
of the building or the person responsible will create the improvements
to ensure that the building is as safe as it needs to be.
Mr Jack: The Order as drafted
provides for the provision of reasonable information to the fire
authority. If plans exist, CFOA and the FBU would expect to be
able to see them and perhaps to mark the location of fire fighting
equipment. The Order as drafted would allow them to do that. It
allows for obtaining the documents and so forth and for reasonable
information to be provided by the responsible person or any other
person who appears to have that information within the premises
concerned. What the Order would not allow for would be for a fire
authority to demand perhaps an architect to be appointed to specially
draw up plans just for this purpose. That would seem overly burdensome.
Q92 Mr Brown: It makes sense that that
information should be made available. Do you feel, if there was
a statutory requirement to provide plans alongside risk assessments,
there would be a substantial burden on the relevant persons?
Phil Hope: Yes. We feel, through
the consultation, we have made the right judgments.
Q93 Dr Naysmith: As you almost certainly
will know, article 13 of the Order requires fire fighting equipment
to be provided on premises to ensure the safety of relevant persons
from fire "where necessary". We have had evidence in
this Committee from the FBU and they have suggested that the question
should really be how much and what type rather than should they
have it at all, when talking about equipment. Are there any circumstances
where it would not be necessary to provide fire fighting equipment
on premises that will be covered by this Order, in your judgment?
Phil Hope: This is again based
on the risk assessment of the individual person responsible and
the view of the fire and rescue authority. It is important that
there is fire and rescue equipment there. It is not incumbent
upon the person responsible to train up the workforce working
in that building to use that fire and rescue equipment. They are
not expected to do that. It is there to be used but there is no
obligation in the Order to expect the lay person in a building
to become a firefighter. It is the job of firefighters to do that.
Q94 Dr Naysmith: The particular point
is that it refers to equipment and suggests that there should
be equipment on the premises, where necessary. In article 14 of
the Order, something very similar comes out where it talks about
routes to emergency exits from premises and the exits themselves
should be kept free at all times "where necessary to safeguard
the safety of relevant persons." Again, can you think of
any circumstances where it might not be necessary to keep an emergency
exit clear?
Phil Hope: Yes. There are two
elements to the assertions being made about the use of the term
"where necessary". The first is that it might contradict
some requirements in the European Directive. It might remove necessary
protection, whether it is the equipment or the exit. We have built
in those caveats about "necessary" but that does not
mean that protection is removed. The regime that requires these
fire precautions to be present when they are necessary would not
require the precautions to be present when they are not necessary,
which is the reverse of the point. If they are not necessary to
protect people, they can hardly be said to be providing necessary
protection. It is down to the risk assessment by the person responsible
to look at what is needed in their premises, to provide appropriate
equipment or appropriate exit plans. Those persons responsible,
with the fire and rescue authority, can then look at what that
might be and make their judgment as to what is or is not necessary.
The phrase "where necessary" is not designed to reduce
protection in any way. It is to provide that necessary judgment
about risk. The person responsible and the fire and rescue authority
need to draw a sensible conclusion about what works and what is
appropriate.
Q95 Dr Naysmith: Perhaps Mr Jack could
answer the question. Can you think of any circumstances when it
would be relevant that an emergency exit was not kept clear?
Mr Jack: There is a point I would
like to make about the use of the words "where necessary"
which will lead on to that. There is a difference in relation
to fire fighting equipment. Under current legislation, fire fighting
equipment is provided for the purposes of ensuring that the means
of escape can be used. That is the sole reason for having it.
There is case law on that point. The difference with the Regulatory
Reform Order is that it requires the equipment and the other precautions
to be provided for the safety of persons, which is beyond simply
protecting the means of escape. It would encompass perhaps an
elderly resident in a fire in a residential home, dropping a cigarette
on a flammable nightgown. There should be equipment available
for the staff to do something. Moving on to the means of escape
point, it is very much a matter of the risk assessment but if
one were to take a building, even such as this fine building,
late at night with only security guards here, some exits may be
locked or barred for security purposes. In that respect, there
is the consideration is it necessary to leave them unlocked or
are there other considerations such as "could people break
in". That would be applicable in shops, offices, nightclubs
and so forth. There would be circumstances where means of escape
might be blocked by barring them on the basis of risk because
it ceases to be a necessary means of escape due to the much reduced
number of people present. Could there be no means of fighting
a fire? The strange example usually used is that about the only
place you could not have fire fighting equipment potentially is
where someone is making concrete gnomes using concrete moulds
out of ready mixed concrete in the open air.
Q96 Dr Naysmith: The reason we are pursuing
these questions is the suggestion that, because of this ambiguity
which the use of such phrases introduces, you might end up with
some people being given a green light to cut corners because they
think there is an argument. Interestingly, you mentioned the EU
legislation. As I understand it, it says "as necessary",
not "where necessary" which does introduce a very subtle
difference.
Mr Jack: I know the Fire Brigades
Union almost laid a challenge to the Committee to find the words
"where necessary" in the relevant Directive and I would
happily say that you will not. The preliminary Article to the
Directive uses the words—I forget the exact phraseology—"these
provisions should be provided where they are required according
to the circumstances of the case" and so on. It is really
a matter of plain English, we hope, and we use the term "where
necessary" for that purpose.
Q97 Dr Naysmith: You do not think this
will end up in the courts, trying to work out what was really
meant when the Minister introduced the legislation?
Phil Hope: No. This is a shift
in risk assessment and on that basis sensible conclusions are
arrived at, taking into account the circumstances that Mr Jack
has mentioned, which will provide adequate protection.
Q98 Mr Havard: This runs right through
the whole thing. The fact that you are making the point that this
is a shift from simply equipment for escape—this whole question
of safety. There is the relationship with the Health and Safety
at Work Act and all of the aspects of that, particularly the management
of health and safety and the risk assessment element. That has
become very important in terms of that Act and is a development
from where it started. There is a sort of incremental progression
going on here which is very welcome and long overdue. There is
a relationship about enforcement. I am an old trade union official
and I have had this discussion so many times in so many different
workplaces with so many different employers. Their lack of understanding
of how they have to relate to the general public rather than their
employees as well, the whole picture of where they sit in relation
to their obligations for policy statements and how all of these
different aspects must relate to their description of what they
do about their obligations to people for their safety and welfare
in the broader context. Enforcement can come through the Health
and Safety Executive to some regard in most things and then we
have seen rail crashes and all sorts of other things. We start
straying into corporate manslaughter and all the rest of it. This
only deals with particular aspects but it has to have a proper
relationship with all these other things and there is a lack of
consistency in the description of the terms used of "where
necessary", "where practicable", "where reasonable",
"as necessary" and all of these different things. I
am wondering whether you look at the broad canvas on which you
have looked at all these different aspects of different parts
of primary legislation, regulations and so forth and why we cannot
see some sort of consistency here in this terminology, because
when it comes to the practical debate between two individuals
trying to make sense of all of this they start interchanging terms
and there is no common understanding of what is "where necessary".
Some sort of explanation of what is meant is fundamental to this
whole discussion because the legislative framework is highly progressive
but when it comes to practical application it is very difficult.
Phil Hope: The reason for the
RRO is because there is so much fire safety legislation, Orders
and regulations in a variety of different places. By bringing
them all together in one place, that makes clear who is responsible
and to what extent. The enforcement and the guidelines do make
it clear to everybody exactly what their responsibilities are.
You are making a wider point about health and safety legislation
and so on which I am not qualified to answer, but in terms of
the remit of this Regulatory Reform Order it is exactly that kind
of confusion of different things in different parts that different
businesses have not cottoned onto. We think this is why the Order
itself provides us with this real step change forward.
Q99 Mr Havard: The discussion about "where
necessary" is part of the discussion about what is reasonably
practicable.
Phil Hope: I understand that point
of detail. We have taken from existing legislation, the 1974 Act,
these kinds of words to ensure that there is consistency with
the previous legislation, rolling it forward into this Order.
We are not creating any new inconsistencies.
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