House of Commons - Regulatory Reform

Select Committee on Regulatory Reform Eleventh Report

4 Purpose of the proposal

10. The proposal would provide a single legislative basis for general fire safety precautions in all non-domestic premises (subject to certain well-defined exceptions). It would replace the two principal pieces of legislation governing fire safety in England and Wales.

The present situation

11. The Fire Precautions Act 1971[9] presently applies to designated premises, of which there are two types: hotels and boarding houses, and factories, offices, shops and railway premises. Subject to certain exemptions, the occupier of such premises must apply for a fire certificate from the fire authority (in practice the local fire brigade). A certificate will only be issued after the fire authority has inspected the premises and ensured that the means of fighting fire, the means of raising the alarm and the means of escape from fire are adequate.[10]

12. The Fire Precautions (Workplace) Regulations 1997,[11] as amended, implement two European Community directives on workplace health and safety, the Council Framework Directive[12] and the Council Workplace Directive.[13] They apply to the vast majority of places where persons are required to work, with certain exceptions for premises which are covered by existing health and safety legislation. The legislation requires employers to carry out fire risk assessments, identify the significant findings of the risk assessment, provide appropriate fire precautions and provide information, instruction and training to employees about fire precautions.[14] Employers are required to take care of other persons on the premises, and must take account of any duty of care their employees my have to other occupants of the building.

The proposed reform

13. The Government proposes a single legislative regime to deal with general fire safety in most places used or operated by employers, the self-employed and the voluntary sector for what the Department describes as '"commercial-type" activity'.[15] Some premises and places require particular fire safety considerations, and these are removed from the scope of the draft Order.

14. Process fire safety—the particular fire safety measures required in respect of industrial processes—will continue to be dealt with under existing health and safety legislation. The draft Order draws a clear demarcation between the authorities responsible for enforcing general fire safety and process fire safety.

15. The Department has outlined the proposed legislative regime at paragraphs 43 to 61 of the explanatory statement. In particular the explanatory statement summarises:—

— who is responsible for fire safety precautions on premises (paragraphs 45 to 46);

— what the general requirements to be imposed are (paragraphs 47 to 50);

— which bodies are to enforce the provisions of the draft Order (paragraph 51);

— the means of enforcement (paragraphs 52 to 55);

— the offences which are to be created (paragraphs 56 to 57);

— the correlation between the draft Order and other legislative regimes (paragraphs 58 to 60), and

— how the draft Order would apply to the Crown and to the Houses of Parliament (paragraph 61).

The legislative approach

16. The draft Order sets out a "goal-based" fire safety regime which is founded upon principles of risk assessment. The Department states that under the Order the responsibility for the safety from fire of relevant persons on all premises rests with a defined responsible person.[16]

17. The "responsible person" is defined (in article 3 of the draft Order) as either:

— the employer (in relation to a workplace which is to any extent under his control); or

— the person who has control of premises in the carrying on of any trade, business or other undertaking (for profit or not); or

— the owner of premises (in any other case).

In addition, the draft Order imposes similar obligations on every person other than the responsible person who has to any extent control of premises, so far as the requirements relate to matters within his control. The Department explains that this would include any person with a contractual obligation in relation to the maintenance or safety of premises (for example, a company which is responsible for maintaining a fire alarm on the premises).[17]

18. Article 5(5) of the draft Order places the responsible person under a duty to take, or to observe, general fire precautions (as set out in articles 8 to 22 of the draft Order and in any regulations which may be made under article 24) in respect of relevant persons. A relevant person is defined in article 2 of the draft Order as:—

— any person (including the responsible person) who is or who may be lawfully on the premises, and

— any person in the immediate vicinity of the premises who is at risk from a fire on the premises.

The definition of "relevant person" specifically excludes any firefighter who is carrying out duties in relation to the function of a fire authority. The breadth of this definition is addressed at paragraph 79 below.

19. Premises are given a broad definition in the draft Order as "any place, including any workplace; any vehicle, vessel, aircraft or hovercraft; any installation on land (including the foreshore and other land intermittently covered by water) and any other installation (whether floating, or resting on the seabed or the subsoil thereof, or resting on other land covered with water or the subsoil thereof); and any tent or movable structure." This is far broader than the definition in the 1971 Act, where "premises" means "building or part of a building."[18] The definition of "premises" in the draft Order extends far beyond what might be considered a building: for example, a golf course or a football pitch would fall within the definition of "premises".

20. Article 6(1) of the draft Order disapplies its provisions from certain premises, including domestic premises, offshore installations (e.g. oil rigs), ships, aircraft, locomotives, licensed vehicles, mines and boreholes. "Domestic premises" are defined as "premises occupied as a private dwelling (including any garden, yard, garage, outhouse, or other appurtenance of such premises which is not used in common by the occupants of more than one such dwelling)." We address the definition of "domestic premises" in relation to houses in multiple occupation (HMOs) at paragraph 158 below. Article 6(2) of the draft Order provides that it shall apply to all other premises.

21. The basis for the fire precautions which must be taken under the draft Order is the risk assessment. Article 9(1) of the draft Order requires the responsible person to make "a suitable and sufficient assessment of the risks to which relevant persons are exposed". This risk assessment is intended to enable the responsible person to identify what general fire precautions he needs to take in order to comply with the specific requirements, or prohibitions, which the draft Order imposes on him by virtue of articles 8 to 22. We deal further with the specific issue of risk assessment, and guidance on how it is to be carried out, at paragraph 232 below.

22. The proposed Order would repeal, revoke or amend a total of 79 items of primary and subordinate legislation. The titles of the Acts affected, and the place where each is described in the explanatory statement, are set out in full in Annex 1. The titles of the statutory instruments affected, and the place where each is described in the explanatory statement, are set out in full in Annex 2. Annex 3 sets out the provisions of each enactment affected which are not presently in force.

Use of the Regulatory Reform Act

23. The proposal is one which has been long heralded by the Government as an example of the innovative use of the powers available under the Regulatory Reform Act. It is far from being a purely deregulatory measure. Its principal object is twofold:

a) to remove the anomalies and inconsistencies in existing primary and secondary legislation relating to fire safety, and

b) to replace them with a single legislative regime tailored to what the Government considers is a modern approach to fire safety precautions.

24. The proposal would repeal the substantive fire safety provisions in existing public general legislation, and disapply those provisions in health and safety legislation which presently have an application to fire safety. Fire safety provisions in local acts (making fire safety arrangements in certain local authority areas) would be similarly repealed or disapplied.

25. The proposal would then introduce a single legislative regime which would govern general fire safety precautions in the majority of non-domestic premises. The Department argues that this would provide greater certainty and clarity in legislation, and would remove the confusion of overlapping enforcement regimes. A single authority in each local government area (usually the fire authority) would be the inspecting and enforcing authority for fire safety.

Avoidance of legislative overlap

26. The Department states that the draft Order should be "the principal legislation for general fire safety."[19] It considers that "conditions of licences and permissioning regimes that cover the same general fire safety requirements as the draft Order should be disapplied." The Department has not given any examples of the type of licence or permissioning regime which should be disapplied. Nevertheless, article 43 of the draft Order provides for the suspension of terms and conditions of licences dealing with the same matters as the draft Order.

27. Article 43 provides that in cases where the licensing authority for a premises is not also the fire safety enforcing authority, any terms, conditions or restrictions imposed by the licensing authority have no effect insofar as they relate to any matter which could be dealt with under the draft Order. Similarly, article 44 of the draft Order disapplies any byelaw in relation to premises insofar as the draft Order has effect.

28. The Department states that "for the protection of the individual and to avoid inconsistent enforcement and requirements, all public bodies with a legislative interest in any place[20] should be required to consult the authority enforcing the draft Order before taking any action which may affect the fire safety arrangements."[21] Similarly, "the authority enforcing the draft Order should be required to consult those other authorities before taking formal enforcement action . . .". Articles 45 and 46 of the draft Order appear to make provision for consultation in accordance with this aim.

29. Article 45 of the draft Order requires a local authority which receives plans for the erection or alteration of a premises to which the order applies (in accordance with building regulations), or for the change of use of a premises to which the order would apply, to consult the fire safety enforcing authority before passing the plans. This requirement does not apply where the local authority is also the fire safety enforcing authority.

30. Article 46 of the draft Order requires any Government department or other public authority, including a building inspector, which intends to take any action in respect of premises which would change any fire safety measures taken under the draft Order to consult the fire safety enforcing authority before the action is taken.

Houses in multiple occupation

31. Domestic premises, defined as "premises occupied as a private dwelling"[22] are excluded from the scope of the proposed order. Housing law, rather than fire safety law, applies to houses in multiple occupation (HMOs) insofar as they are domestic premises. However, the Department states that fire safety law applies to the common parts of HMOs "insofar as they may have common parts or may be used as a place of work."[23] While the Department's intentions may be clear from the explanatory statement, there is a doubt as to whether the draft Order achieves this effect. The matter is addressed at paragraph 158 below.

9 1971 c. 40 Back

10 Explanatory statement, para 18 Back

11 S.I. 1997/1840 Back

12 Council Directive 89/391/EEC, a framework directive on the introduction of measures to encourage improvements in the health and safety of workers at work. Back

13 Council Directive 89/654/EEC, a directive concerning the minimum safety and health requirements in the workplace. Back

14 Explanatory statement, para 19 Back

15 Explanatory statement, para 43 Back

16 Explanatory statement, para 6 Back

17 Explanatory statement, para 335 Back

18 Fire Precautions Act 1971, s. 43 Back

19 Explanatory statement, para 58 Back

20 By "place" it is assumed that the Department means premises which fall within the purview of the draft Order. Back