Select Committee on Regulatory Reform Eleventh Report

6 Assessment against Standing Order No. 141 (6) criteria

a. Appropriateness

40. The House requires us to consider whether the proposed reform is appropriate to be made by delegated legislation.

41. We have thus far reported on 21 proposals laid before Parliament under the Regulatory Reform Act and have considered each of them to be appropriate for delegated legislation. The scope of the present proposal is far broader than anything previously contemplated under the Regulatory Reform Act, not only in the number of separate repeals of, and amendments to, existing legislation, but also in the extent and nature of the reform proposed. The proposal also arguably makes a novel use of the Regulatory Reform Act powers. We have therefore given careful consideration to the issue of appropriateness.

Purpose

42. The Regulatory Reform Act provides for the making of orders to remove or reduce burdens, to introduce new burdens or to re-enact existing ones so long as they meet the statutory tests of fair balance, desirability and proportionality, and to remove inconsistencies and anomalies in existing legislation.

43. Many previous regulatory reform proposals have had a purpose which was essentially deregulatory. The main object of the proposal has been to remove a burden, and any burdens re-enacted, or new burdens created, have been consequential upon the removal of the burden, and have been made to ensure, for instance, that necessary protections are retained.

44. The present proposal has an avowedly different purpose, that of reforming an entire regulatory regime. The principal object of the proposal is not the removal of burdens, but the re-balancing of legislative burdens in a way the Government considers proportionate and desirable. It is the clearest demonstration so far of the breadth of the power available to the Government under the Regulatory Reform Act compared to the powers available under the Deregulation and Contracting Out Act 1994.

45. The Government has often cited the example of fire safety legislation as a regulatory regime which would be suitable for wide-ranging reform by delegated legislation. During the debates on the Regulatory Reform Bill [Lords] in 2000 and 2001, the Government indicated that it was likely to use the powers in the Regulatory Reform Act to bring in a proposal to reform the law on fire safety.

46. The point was raised in the Commons Third Reading debate on the Bill, in the context of the Government's commitment not to use the regulatory reform procedure to introduce measures which were both large and controversial: "Fire safety legislation is large by anybody's measure—it remains to be seen whether it is controversial."[33]

47. There has been no hard and fast definition of what is likely to constitute a "large and controversial measure" which would be inappropriate for delegated legislation. Lord Falconer, when giving evidence on the Bill to the Lords Committee, talked of an "elephant test": "you cannot describe it, but you know it when you see it."[34] He argued that the statutory processes provided for under the Act, such as the process of consultation and the statutory tests, would winnow out any inappropriate proposals.

Size

48. The proposed Order is far larger than any proposal we have thus far considered, not only in terms of its length (51 articles and 4 schedules) but also in its scope (the effective repeal and reform of the entire legislative regime relating to fire safety) and its extent (the repeal or amendment of 21 general and 33 local Acts and the revocation or amendment of 25 pieces of secondary legislation.)

Controversy

49. The Minister for the Cabinet Office has said in the House that "highly charged or politically controversial measures are—and will remain—better suited to the floor of the House. The consultation process will be key to establishing whether a proposal is suitable to enactment as an RRO or whether it would be best dealt with as a Bill."[35]

50. The Department has given a summary of the consultation process and the changes made to the proposal as a result of consultation. It has stated that the Government considers that "the broad thrust of the proposals consulted on are reasonable, appropriate and proportionate."[36]

The Committee's position

51. We reserve the right to examine each proposal for a regulatory reform order on its merits. In this we follow the principles set out by our near predecessor, the Deregulation and Regulatory Reform Committee (DRRC), in its report on the handling of regulatory reform orders.[37] That Committee stated that the regulatory reform procedure should not be used to implement substantial policy changes which require the higher level of attention which Parliament pays to primary legislation, and undertook to prevent what might be considered "primary legislation by stealth". But it also stated that the Committee had no intention "of subverting the intentions of Parliament in drafting the Regulatory Reform Act by unduly restricting the scope of that Act."[38]

52. The DRRC nevertheless noted the Explanatory Notes to the Regulatory Reform Act, which set out the rationale for considering regulatory reform orders via the super-affirmative procedure:

"The super-affirmative order-making procedure, with its thorough consultation and weighing of evidence, is well suited to the objective consideration of complex issues. It is ideal where the judgment of experts is required; for issues on which a group of reasonable people, given the relevant facts, would be likely to reach consensus without compromise ..."[39]

53. The DRRC considered that the key question to be asked concerning appropriateness was "are we in the Committee competent to come to the necessary judgments in respect of this proposal on behalf of the House; or are these matters the detail of which it must be for the whole House to debate and, if necessary, vote upon?"[40]

54. Having taken oral evidence on the proposal, we are satisfied that it does not raise matters of controversy which would be more appropriately debated on the floor of the House and in Standing Committee. Nor does it advance a legislative change which would be more appropriately dealt with by primary legislation. We consider that the scrutiny which we have been able to give to the proposal on behalf of the House has been appropriately thorough.

55. This is not to say that the proposal would not make significant reforms to existing primary and secondary legislation. These proposals deserve to be examined closely, and we expect the Government to pay due regard to the recommendations which we make as a result of our examination.

56. The House has set out, in its Standing Orders, the occasions when it considers it appropriate for the whole House to consider draft regulatory reform orders in debate.[41] In all other respects it has delegated the consideration of such draft orders and proposals for orders to this Committee. We consider that the subject matter and content of the proposed Order are appropriate for delegated legislation and fall within our remit.

57. We have made recommendations for the amendment of the proposal and we await consideration of any draft Order which the Government may bring forward. We nevertheless believe that Members should give the proposal careful consideration in the context of the Government's overall programme for the reform of the fire service. We consider that the subject matter of our Report is relevant to the overall issue of fire service reform, including the reforms to be made via the Fire and Rescue Services Bill and the introduction of integrated risk management planning, and we consider that the Government should find time for an adjournment debate on fire service reform which will treat the issue of fire safety in this context.

b. Removal of burdens

58. The principal means whereby the draft Order would reduce or remove burdens is by the repeal of existing requirements on occupiers of premises and the Fire Service.

59. The proposal would repeal or amend 21 existing general Acts extending to fire safety, and a further 33 local Acts, and would revoke or amend a further 25 pieces of subordinate legislation. In each case the repeal of the particular provisions of the enactment relating to fire safety is to be accompanied by the imposition of new burdens contained in the proposed order.

60. The Department has set out, in relation to each enactment, the burdens which are to be removed and the necessary protections which are to be retained. In general the Department has adequately identified the burdens in existing legislation which the draft Order would remove. Many of the burdens in existing legislation are to be wholly or partially repealed and replaced by new burdens in the draft Order. Other legislative provisions (particularly those contained in local Acts relating to particular local authorities) are to be repealed or disapplied because they overlap with the overall and general duties relating to fire safety which are included in the draft Order.

61. It is not intended to spell out here the specific burdens which are to be reduced or removed by means of the draft Order. The following paragraphs deal with possible inconsistencies and anomalies in the explanation of how necessary protections are to be maintained.

c. Necessary protection

62. All the legislation repealed, revoked or amended by the draft Order relates to general fire safety protection. The Department considers that the protections contained in the legislation affected will be adequately maintained by the new draft Order.

63. We identified certain areas where necessary protection in existing legislation might not be adequately maintained, and raised the issues arising with the Department. In addition, we received representations concerning, and subsequently took oral evidence on, specific protections which some considered might be lost if the proposed Order were enacted as it stood.

Articles 13 and 14 of the draft Order: "where necessary"

64. Article 13 deals with the provision of fire-fighting and fire detection equipment. It states that the responsible person must ensure that appropriate fire-fighting and fire detection equipment are supplied "where necessary . . . in order to safeguard the safety of relevant persons."

65. Article 14 deals with the provision of emergency routes and exits. It requires the responsible person to keep emergency exits from premises, and the routes to them, clear at all times "where necessary in order to safeguard the safety of relevant persons."

Concerns

66. Both the Fire Brigades Union (FBU) and the Chief Fire Officers' Association (CFOA) raised with us the drafting of articles 13 and 14 of the draft Order, since they considered that the inclusion of the words "where necessary" in the articles indicated a degree of discretion which would lead to a lowering of existing protection.

67. The FBU argued that the EU Workplace Directive, from which the requirements in both articles is derived, provides in relation to workplaces that "depending on the dimensions and use of the buildings, the equipment they contain, the physical and chemical properties of the substances present and the maximum potential number of people present, workplaces must be equipped with appropriate fire-fighting equipment and, as necessary, with fire alarms and alarm systems."[42] The Union argues that this provision requires workplaces to be equipped with some form of fire-fighting equipment appropriate to deal with risks present in the workplace. It contends that the caveat "where necessary" may allow the responsible person to decide that no fire-fighting equipment is necessary in his workplace, and claims that some have already interpreted the Fire Safety (Workplace) Regulations 1997 in this way.

68. The Union also noted that a number of the local Acts to be repealed by the draft Order contain specific requirements for the provision of fire-fighting equipment and of adequate means of escape, without qualification.[43] It considered that repeal of these provisions and replacement by a qualified requirement would constitute a loss of necessary protection.

69. CFOA considered that the drafting of article 13 adopted the principles of a case which determined that fire protection equipment such as a sprinkler system was not necessary to protect premises from burning down where the fire might only contaminate the environment, but solely to protect the safety of relevant persons.[44] CFOA considered that the provisions of the draft Order were inconsistent with the provisions of Approved Document B of the Building Regulations, which require sprinklers to be provided in certain premises, and recommended that article 13 should reflect the requirements of Building Regulations.

70. Both the FBU and CFOA considered that the level of discretion afforded by the inclusion of the words "where necessary" in article 14 was unacceptable. The FBU stated that the relevant provision of the Directive provided that "to safeguard the safety and health of workers the employer shall see to it that . . . traffic routes to emergency exits and the exits themselves are kept clear at all times."[45] It considered the qualification in article 14 to be "a recipe for a disaster."

71. CFOA could not envisage a situation where an emergency exit route could be left obstructed when persons were still in a building. It further noted that article 14(2) of the draft Order does not include fire doors or any provision to ensure they are self-closing or fire-resisting, nor any provision to ensure that emergency routes are fire resisting. The operation of article 17 of the draft Order, which requires premises and facilities required under the provisions of the Order and any other enactments (including Building Regulations) to be in a suitable state of maintenance and in good repair, would not necessarily ensure that these features were installed under Building Regulations. If they were not installed, CFOA contended that a fire authority could not subsequently insist on their installation. It considered this a hidden statutory bar which should be removed.

The Department's response

72. In evidence to us, the Minister stated that "the phrase 'where necessary' is not designed to reduce protection in any way. It is to provide [a] necessary judgment about risk."[46] He argued that a regime requiring protections to be present where they were necessary was intended to provide that precautions should not be present where they were not necessary to protect relevant persons: "if they are not necessary to protect people, they can hardly be said to be providing necessary protection."[47] Responsible persons had a duty to make a risk assessment of what was necessary on their premises. Mr Jack, for the Department, pointed out that while existing legislation merely required fire-fighting equipment to be provided for the purpose of ensuring that a means of escape could be used, the proposed Order would require such equipment to be provided to ensure the safety of relevant persons.[48] Dealing with the duty to keep fire escapes and the routes to them clear, he noted that some premises with reduced numbers of persons on them at certain times of the day or night might find it necessary to close off routes used as fire escapes "on the basis of risk, because [they] cease to be a necessary means of escape due to the . . . reduced number of people present."[49]

73. In additional evidence to the Committee, the Department addressed the issues raised by the FBU over the proper implementation of the EU Workplace Directive. The Department has pointed out that both elements of the Directive cited by the FBU appear in Annex 1 of the Directive, which is qualified at its opening by the phrase "the obligations laid down in the Annex apply whenever required by the features of the workplace, the activity, the circumstances or a hazard."[50] It argues that the provisions of the Directive therefore require a caveat to be built in to the draft Order.

74. The Department further argues that necessary protection cannot be removed by the draft Order, since fire precautions will always be necessary when required to protect the safety of persons. It notes that while the Fire Precautions Act may have required a feature of fire protection to be put in place regardless of risk, any such requirement in the case of a workplace would be over-ridden by the provisions of the Fire Safety (Workplace) Regulations 1997.

The Committee's view

75. We consider that the removal of any existing requirement to provide fire-fighting equipment and to keep emergency exits and the routes to them clear in all circumstances must constitute a loss of protection. The question is whether the protection constitutes a necessary protection, given the requirements which are to be put in place by the proposed Order and the requirements of the relevant EU Directive.

76. The present regime has the advantage of certainty, while the proposed regime introduces an element of discretion into determining the provision of fire-fighting and fire detection equipment and fire escapes. The Department considers that this level of discretion is adequate, given the general duty on the responsible person to safeguard relevant persons from fire.

77. We consider that articles 13 and 14 will only maintain necessary protection if their effectiveness in practice is ensured. In our view this will only be so if guidance is provided by the Secretary of State (a) to responsible persons on what "where necessary" may mean, and (b) to enforcement authorities as to the effective performance of their duty to enforce these provisions of the Order. We address the issue of guidance further at paragraph 238 below. We consider that articles 13 and 14 will only maintain necessary protection if guidance is provided as noted above.

78. We are concerned at the existence in the draft Order of a possible statutory bar to the enforcement of fire safety requirements (pursuant to articles 13 and 14 of the draft Order) which are required to be included in buildings by virtue of Building Regulations, but which have not been included. We consider that the Department should address the issues raised by the Chief Fire Officers' Association in this respect, and amend the draft Order if it appears necessary.

Protection of firefighters

79. CFOA and the FBU remarked that article 2 of the draft Order, in its definition of "relevant person", expressly excluded "a firefighter who is carrying out his duties in relation to the function of a local authority." While off-duty firefighters on premises would be treated as relevant persons, and would therefore be subject to the protection of the Order, on-duty firefighters would not, even if their duties on the premises concerned were not connected with fighting fire.

80. The FBU and CFOA recognised that the person responsible for premises where a fire was being fought should not be responsible for firefighters' safety, since this was the duty of Fire Service employers and managers. CFOA pointed out that there were a number of other reasons for firefighters to be on premises in connection with their fire authority duties, such as giving advice, collecting operational intelligence and conducting fire safety inspections.[51]

81. The Department has acknowledged that the Order as drafted goes beyond what was intended in this respect. Mr Jack, for the Department, assured us that the draft Order would be amended to provide protection for firefighters who are legitimately on premises in pursuit of fire authority duties not connected with fighting fire or carrying out rescues from fire. He undertook to consult the Fire Service in the amendment.

82. We recommend that the draft Order be amended to provide a necessary level of protection from fire for firefighters on premises in pursuit of fire authority duties other than firefighting or carrying out rescues from fire.

Definition of "escape" and "place of safety"

83. The FBU remarked that the definition of "escape" in the 1971 Act had proved deficient, since it did not necessarily provide for a means of ultimate escape from a building: the owner or occupier of a building could legally provide for a means of escape from the building itself, but would be under no obligation to provide any further means of escape, even if the means provided ended in a closed courtyard from which there was no issue. The FBU noted that the 1971 Act had since been amended to remove this anomaly.[52]

84. While the FBU recognised that the definition of "premises" in the draft Order was far broader than the definition in the 1971 Act, it considered that "escape" should be defined in the draft Order in similar terms to the eventual definition in the 1971 Act.

85. The draft Order in fact includes a requirement that emergency routes and exits must lead as directly as possible to a place of safety (article 14(2)(a)). CFOA considered that this should be defined as "a place of ultimate safety" for the avoidance of any doubt.[53]

86. The Department has stated that the draft Order requires the responsible person to consider the risks to persons from fire "in and around any place for which they have responsibility."[54] It considered that the requirement to provide a means of escape to a place of safety could not be construed as providing a means of escape to any area in the vicinity of premises where relevant persons would still be at risk in case of fire. It therefore considered it unnecessary to repeat the definition of 'escape' contained in the 1971 Act as amended.

87. While we accept the logic of the Department's argument, we are concerned that the present drafting of the Order may leave the matter ambiguous. A barrister constructing a case would no doubt have no difficulty in demonstrating that a defendant, in making inadequate provision for escape from the vicinity of premises, had not complied with the provisions of the Order: but such an issue may reach the courts only as the result of a misinterpretation of the provisions of the Order, a fire and subsequent casualties.

88. We consider that, for the avoidance of doubt, the Department should take the following steps to ensure that the duties of responsible persons are clear:

a)  the draft Order should be amended to provide that in all cases "place of safety" should be defined to ensure that the meaning of "a place of ultimate safety" is explicit, and

b)  all editions of guidance issued to responsible persons on their obligations under the proposal should make it clear that the law requires them to provide a means of escape from premises to a place of safety beyond the premises and any area enclosed by it or with it.

Fire Precautions Act 1971

89. Paragraph 61 of schedule 2 to the draft Order repeals the Fire Precautions Act 1971—one of the two principal legislative bases for the present fire safety regime—in its entirety. Some provisions have not been re-enacted or replaced by means of the draft Order, and a number of these prompted submissions to the Committee.

Provision for adequate inspection and enforcement

90. The draft Order would repeal the Fire Precautions Act 1971 in its entirety. Section 1(1) of the 1971 Act requires a fire certificate to be obtained in respect of all premises which fall within the categories of use designated by the Secretary of State. Section 5 of the 1971 Act requires an application for a fire certificate in respect of designated premises to be made to the fire authority. Once the application is received, the authority is required to notify the applicant of his fire safety duties during the period when the application is pending, and may require the applicant to provide plans of the premises.

91. Section 5(3) of the 1971 Act puts the fire authority under a duty to cause an inspection of the premises in respect of which an application has been received.[55] If the authority is satisfied that the means of escape, the means of securing the means of escape, the means of fighting fire and the means of raising the alarm are adequate, then the authority shall issue a fire certificate. The certificate is required to specify the use of the premises, the means of escape, the means of securing the means of escape, and details of the type and location of the relevant fire fighting devices and fire alarms, and may specify requirements imposed by the fire authority.[56]

92. The Department has identified the protections in the 1971 Act which it considers necessary in this respect. It considers that section 1 obliges the owner or occupier of premises which have a use designated by the Secretary of State to have such fire precautions as the fire authority deems necessary in the circumstances "to reasonably assure the safe evacuation of all persons in case of fire."[57] These protections are to be recorded on the fire certificate. Designated premises which do not require a fire certificate are obliged to take sufficient general fire precautions under section 9A of the 1971 Act. Workplaces which do not require fire certificates fall under the obligations imposed by the Fire Precautions (Workplace) Regulations 1997. The Department considers that all these protections are maintained by the substantive provisions of the draft Order (in particular articles 8 to 22), since they cover all the matters which could be provided for in a fire certificate (as defined in sections 6(1) and 6(2) of the 1971 Act) and the duties imposed on non-certificated premises by section 9A of the 1971 Act and the 1997 Regulations.

93. Section 18 of the 1971 Act places every fire authority under a duty to enforce the provisions of the Act and its subordinate regulations, and to appoint inspectors and to cause premises to be inspected. The Department states that the burden in section 18 is re-enacted by article 26 of the draft Order, which requires every enforcing authority to enforce the provisions of the Order and subordinate regulations, and to have regard to any guidance on enforcement to be issued by the Secretary of State.[58] It considers that articles 25 to 28 of the draft Order would continue any necessary protection by defining the enforcing authorities, placing a duty upon them to enforce the Order, giving them powers of entry and authorising officers of fire brigades to act on the behalf of fire inspectors.[59]

Concerns

94. Professor Rosemarie Everton, Professor of Fire Law at the University of Central Lancashire and a member of the Fire Safety Advisory Board and Sub-Group, drew attention to the likely consequences of exchanging the existing regime of inspection and certification for an intensified and extended "self compliance" regime.[60] She made four points:

—  certification had provided "both reassurance to the public and support for small business" over many years, and had reduced the incidence of large fires and fire-related injury;

—  the removal of certification would lead to the removal of the specific statutory duty to inspect (under section 5(3) of the 1971 Act), which might lead to "a weakening of the impetus for the fulfilment of their duties by the regulated, and the fulfilment of their functions by the regulators";

—  it was proposed to place an obligation on fire authorities to "institute, develop and maintain" an enforcement programme: but this programme might prove inadequate, and

—  the potential convergence of insufficiencies in respect of the three points made above raised doubts as to whether the system instituted by the proposed Order would be sufficiently rigorous to provide for public safety and public reassurance in respect of higher-risk premises.

95. Both Professor Everton and the FBU considered that the proposed Order was deficient in that it provided for a duty to enforce the Order without placing a duty on fire authorities to carry out inspections or to develop an enforcement programme to do so.[61] The FBU also noted that the issue of fire certificates and the grant of exemptions from fire certification gave a "clear and measurable indication of the enforcement activities of the fire authorities": once certification was removed, there would be no basis for the existing Best Value performance indicator. The FBU considered that without demonstrable measures of inspection and enforcement, public confidence in fire safety procedures might be jeopardised.[62] Mr Tony Taig remarked that "there is definitely a risk of loss of confidence if we do not have some visible, transparent means of seeing how enforcement and inspection are working."[63]

96. The FBU further noted that the Department consulted on the principle of placing fire authorities under a duty to institute, develop and maintain an enforcement programme, to include details of how a fire authority might determine the frequency with which it would inspect premises.[64] It remarks that the proposal received "considerable support" at consultation stage and was not opposed.

97. In oral evidence Mr Glyn Evans of the FBU indicated some of the discussions which had taken place within the Fire Safety Advisory Board Sub-Group on the issue. Responding to the likely repeal of certification procedures, he said that the Sub-Group decided that "the critical factor in assuring the public was enforcement: the public need to be able to see that fire and safety 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."[65]

98. From the Department's analysis of consultation responses it appears that 20 respondents agreed that there should be an enforcement programme and 43 considered that it should be published.[66] In the event, a duty to institute, develop and maintain an enforcement programme has not been included in the proposal for the Order. Instead there is a duty on fire authorities to have regard to guidance to be issued by the Secretary of State in performance of its duties. The Department has not, in the explanatory statement, offered any explanation for why the duty was removed from the proposal.

The Department's response

99. The Department, in its consultation paper on the proposal, made clear that it was not taking forward the proposals for formal validation of high-risk premises envisaged in the Green Paper Fire Safety Legislation for the Future.[67] The Department considered that it would be impracticable to define "high risk" premises in law in sufficient detail.[68] Instead, it had proposed to place the duty of instituting, developing and maintaining an enforcement programme on the enforcing authority.

100. In evidence to the Committee the Minister explained that this requirement to develop an inspection programme had been "overtaken by events": "subsequent to those ideas being thought through, we have introduced integrated risk management planning."[69] The Government proposes to publish a national framework for fire service activity, which will "put in place a clear responsibility to get on with [the] job of ensuring that enforcement takes place . . . the combination of an integrated risk management plan and annual action plan which is renewed and reviewed will kick the fire and rescue authorities into a different way of operating to ensure that they are enforcing where there is the greatest risk."[70] The Minister stated that the Fire Inspectorate would promote good practice and that comprehensive performance assessments would provide a mechanism to assess the overall performance of fire authorities, including enforcement. Mr Hope considered that this combination of measures "will provide the necessary managerial pressure upon the services to improve their performance where it is found that they need to do so."[71] He stressed that the object of the system was to target inspection resources at those areas with highest risk.[72]

Our assessment

101. We recognise that there are instances where the present statutory requirement for certification and inspection may place too rigid a straitjacket on fire authorities, leaving them less time and fewer resources to devote to other aspects of firefighting, fire protection and rescue. We are nevertheless concerned that the new proposal to develop enforcement programmes through integrated risk management planning and its associated tools does not appear to have been subject to consultation. We can find no evidence that it was considered by the Fire Safety Advisory Board before being introduced to replace a proposal which appeared to have secured widespread support from the Board.

102. The FBU did in fact agree that a general duty of enforcement accompanied by a code of practice issued in the form of guidance would achieve the necessary protection in a more dynamic form.[73] Since the draft Order contains provision for the Secretary of State to issue guidance to authorities on enforcement, we consider that the Union's concern on this point has in fact been met.

103. We are nevertheless concerned that the modern integrated risk management regime with its complementary pressure points, which the Minister outlined for us, lacks any real legislative force. Mr Tony Taig remarked that there was nothing in the draft Order to preclude a means of assessing how inspection and enforcement processes are working under the draft Order, "but there is nothing to require it either."[74] We are not yet convinced that a legislative requirement can adequately be replaced in full by a regime which will operate by purely administrative means, determined by performance targets and by local circumstances. Moreover, these approaches to fire service management are not fully tried and tested, since they are in the process of being rolled out across the Service. On the evidence before us, we are not yet convinced that the integrated risk management regime, which is still in its infancy, will adequately maintain the necessary levels of protection to be found in existing legislation in respect of the inspection of premises and the enforcement of fire safety measures.

104. In our view, a level of protection equivalent to that which presently exists might be achieved if the Secretary of State were to be placed under a duty to issue guidance to fire authorities on their enforcement of the Order, to monitor the enforcement activity of each fire authority and to give directions on enforcement to any authority whose enforcement performance appeared to be slipping. We consider that this proposal would maintain public confidence in the system of enforcement and would retain a necessary overview of enforcement patterns, while keeping the flexibility which the draft Order properly allows fire authorities in the exercise of their duties. We recommend that article 26 of the draft Order be amended to provide that the Secretary of State must issue guidance to fire authorities on their enforcement of the provisions of the Order, that he must monitor the enforcement activity of fire authorities and that he may issue directions to fire authorities on their enforcement activity.

105. While the Minister may wish to consult with fire authorities on the framing of this requirement, we do not consider that it falls outside the scope of the original consultation. We consider that the amendment is appropriate to be made without re-consultation.

Enforcement of regulations

106. Section 12 of the 1971 Act gives power to the Secretary of State to make regulations. Section 12(4) provides that the regulations may provide that contravention of specified provisions of the regulations is an offence. This provision does not appear in article 24 of the draft Order, which otherwise substantively re-enacts the provisions of section 12. The explanatory statement seemed to imply that regulations made under article 24 of the draft Order might create offences.[75] If this were the Department's intention, then the omission of a provision equivalent to section 12(4)(c) of the 1971 Act may be considered a failure to maintain necessary protection, since it does not provide adequately for the enforcement of regulations which are designed to secure safety from fire.

107. Mr Evans of the FBU also raised with us a similar issue: the fact that article 32(1) makes it an offence to fail to comply with any requirement or prohibition imposed by articles 8 to 21 and 38 of the draft Order where that failure would place one or more persons at risk of death or serious injury in case of fire. He considered that it would be more appropriate for the fire authority simply to allege a failure to comply and to leave the seriousness of the offence for the courts to decide.[76]

108. We asked why the draft Order did not continue the effect of section 12(4)(c) of the 1971 Act, but instead provided that contravention of specified provisions of the Order should be an offence only where it placed a relevant person at risk of death or serious injury. The Department responded that it considered it more appropriate to address minor breaches by informal advice or, where appropriate, an enforcement notice, leaving direct prosecution as an option where a failure to comply actually placed a relevant person at a serious level of risk.[77]

109. The Department explained that it intended to take a similar approach in respect of regulations made under article 24 of the draft Order. It states that such regulations would be used to specify the particular types of fire precautions which would apply to risks posed by a particular set of premises (such as sub-surface railway stations[78]), complementing the more general fire safety measures set out in articles 8 to 22 of the draft Order.[79] It therefore considered it desirable to render the provisions for failure to comply with any requirement or prohibition imposed by those regulations consistent with those for failure to comply with the general fire safety duties set out in articles 8 to 22.

110. The Department acknowledges that the apparent effect of the failure to continue the effect of section 12(4)(b) of the 1971 Act would be to reduce the criminal sanctions available for failure to comply with regulations made under section 24, which would diminish the effectiveness of enforcement. The Department's view is that enforcement would continue to be effective, although not every breach of regulations made under section 24 should result in prosecution. The Department considers that an "effective and proportionate enforcement regime" would consist of prosecution for the most serious offences, combined with power to serve an enforcement notice on less serious breaches, and the threat of a criminal sanction for failure to comply with such a notice.

111. The Department also notes that "seemingly minor breaches of regulations might put a person at risk of death or serious injury in the event of fire", such is the risk which fire poses: it would therefore be unlikely to be difficult to prove that a failure to comply would have put relevant persons at risk of death or serious injury.[80]

112. We consider that the dual options of prosecution (provided for in articles 32(1) and 32(2) of the draft Order) and the service of enforcement notices adequately retain the level of necessary protection provided by the 1971 Act.

Modification of leases to allow alterations

113. Section 28 of the 1971 Act allows the court to modify agreements and leases, and apportion expenses, where a person is required to carry out alterations to premises by virtue of a requirement imposed under the 1971 Act but is prevented from doing so by reason of the terms and conditions of an agreement or lease. In its explanatory statement the Department did not explain why the draft Order did not include a corresponding provision.

114. We considered that cases where a notice is served under article 29, 30 or 31 or a requirement is imposed by regulations under article 24 would be particularly relevant, since the existing provision might be considered a necessary protection for a tenant who could not otherwise make alterations to premises necessary to comply with fire safety requirements under the draft Order.

115. We asked the Department to explain whether the provisions of section 28 of the 1971 Act were considered necessary protections. The Department explained that it considered the protections of section 28 of the 1971 Act, allowing a court to alter the terms of a lease, operated in two cases: where a notice under section 3 of the 1971 Act, relating to certain premises used as a dwelling, was in force, and to premises where a fire certificate is required or in force, exempt premises (to which section 9A of the 1971 Act applies) and premises to which regulations made under section 12 of the 1971 Act apply.[81]

116. The Department states that section 3 of the 1971 Act has never been commenced, and the protections provided by it therefore remain theoretical. Nevertheless, the Department considers that a similar level of protection to section 28 of the 1971 Act would be provided in this respect by article 5(3) of the draft Order. This imposes a duty on every person other than the responsible person who has to any extent control of premises, insofar as the requirements relate to matters within his control. The Department considers that where the terms of a lease prevented a responsible person from carrying out any alterations to premises, enforcement action could be taken against the lessor under article 5(3) to ensure that consent was given to the works.

117. The Department also points out that section 19(2) of the Landlord and Tenant Act 1927 and section 81(1) of the Housing Act 1980 imply terms into both leases and protected and statutory tenancies, to the effect that a landlord may not unreasonably withhold consent from the making of improvements to a property. The Department considers it "reasonable to assume that a court would consider that it would be unreasonable to withhold consent to the making of an alteration which was necessary to ensure the safety of persons in or on the premises." [82]

118. The Department now considers that articles 30 and 31, which allow for an enforcement or prohibition notice to be served on the responsible person, and article 32(1), which provides for offences committed by the responsible person, are too restrictively drafted in the context of article 5(3). It concedes that the articles as drafted would not extend to persons who are not the responsible person but, by virtue of article 5(3), have the same duties imposed upon them.

119. The Department has therefore indicated that it will amend articles 30, 31 and 32(1) to enable enforcement action to be taken against any person who has failed to comply with their duties in respect of premises under article 5(3) of the draft order. We agree that the draft Order should enable enforcement action to be taken against any person who has a duty in respect of premises under article 5(3) of the draft Order. We recommend that the draft order be so amended.

Regulations under section 12 of the 1971 Act

120. The proposed Order would revoke the Fire Precautions (Sub-surface Railway Stations) Regulations 1989[83] ("the 1989 Regulations"), which set minimum standards for fire precautions to apply at sub-surface stations. The 1989 Regulations are made under section 12 of the Fire Precautions Act 1971, and were brought into force as a result of the Fennell Report on the fire disaster at King's Cross underground station in November 1988. Article 24 of the draft Order would give the Secretary of State a similar power to make regulations to deal with fire safety on particular categories of premises.

121. We received a representation expressing concern that the draft Order would remove the minimum safety standards which presently apply to sub-surface railway stations "and instead allow management the freedom to risk assess fire safety measures":

It is unclear to . . . London Underground users and employees how such a measure will improve fire safety on the Underground and indeed there are fears that without minimum standards corners will be cut and safety compromised. [84]

We therefore asked the Department whether it had plans to make regulations under article 24 of the draft Order to provide for fire safety in sub-surface railway stations, whether such regulations, if any, would replicate the provisions of the 1989 Regulations, and how the recommendations of the Fennell Report would be continued under the proposed Order.

122. The Department has stated in response that it has no plans to make separate regulations for fire safety in sub-surface railway stations.[85] As a result of its consultation with enforcing bodies and others, it has come to the view that the provisions of the draft Order, when taken together with the Railway (Safety Case) Regulations 2000 ("the 2000 Regulations"),[86] enforced by the Health and Safety Executive, will continue all necessary protection implemented by the 1989 Regulations. It notes that the 1989 Regulations are "highly prescriptive", although the enforcing authority is allowed some discretion.

123. The Department considers that all the necessary protection which is provided by the implementation of the Fennell Report recommendations (by means of the 1989 Regulations) would be continued by the effect of the draft Order and the 2000 Regulations, although it has identified an aspect of the 2000 Regulations which would be limited by the operation of the draft Order and intends to make an appropriate amendment to the Order. The Department has indicated that the requirement in the 1989 Regulations which provides that shifts shall be arranged so that two people are at work at all times when the public are present[87] may be relaxed by the fire authority at its discretion.[88] In addition, the Department considers that the requirement for there to be sufficient staff to implement the fire safety arrangements is carried forward by articles 11, 15 and 18 of the draft Order.

Our assessment

124. The particular concern over the potential loss of protection from the revocation of the 1989 Regulations was raised with us only after we had taken oral evidence from the Minister. In the limited time available to us, we have not had the opportunity to make a thorough assessment of the 1989 Regulations and the degree to which the protections contained in them are continued in the draft Order and the 2000 Regulations. We are nevertheless concerned that the high level of protection contained in the 1989 Regulations, reflecting the unique nature of fire risks in sub-surface railway stations, should be continued.

125. Given the nature of sub-surface railway stations, and the substantial numbers of relevant persons who use them each day, there must be a very strong public interest in ensuring their safety from fire. It does not appear to us that the operation of the Regulations places a disproportionate burden on the management of sub-surface railway stations, and it has not yet been demonstrated that fire safety in such stations would be enhanced by the removal of the 1989 Regulations in favour of the risk-based regime contemplated in the proposed Order. We have also received no indication that any guidance will be issued to indicate what fire safety provisions should be made for sub-surface railway stations under the proposed Order.

126. In our view the Department has not yet made a convincing case for the revocation of the 1989 Regulations. The Regulations do impose a prescriptive regime for fire safety in underground stations which we recognise is not in keeping with the goal-based approach which the Department wishes to take in the proposed Order: but the draft Order itself makes provision for the imposition of similar regimes through regulations under article 24.

127. We consider that the provisions of the Fire Precautions (Sub-surface Railway Stations) Regulations 1989 constitute necessary protections. On the evidence presently before us, we are not convinced that the provisions will be adequately carried forward under the general provisions of the draft Order and the Railway (Safety Case) Regulations 2000, as amended. We consider that the provisions of the Fire Precautions (Sub-surface Railway Stations) Regulations 1989 should remain in force. We therefore recommend that Schedule 5 to the draft Order be amended to remove the references to the Fire Precautions (Sub-surface Railway Stations) Regulations 1989, the Fire Precautions (Sub-surface Railway Stations) (Amendment) Regulations 1991 and the Fire Precautions (Sub-surface Railway Stations) (Amendment) Regulations 1994.

128. We note that once the Order is in force the Secretary of State may make regulations under article 24 which would revoke the 1989 Regulations. Any decision to keep the 1989 Regulations, as amended, in force beyond the entry into force of the draft Order is therefore by no means irrevocable.

129. Another solution might be the provision of guidance by the Secretary of State on the operation of fire safety requirements in sub-surface railway stations. We note that London Underground Limited, in its response to the consultation on the proposal, stressed the need for guidance on implementation of the proposed Order.[89] Such guidance could include all the elements of protection prescribed in the 1989 Regulations.

Rent Act 1977

130. The proposed order would repeal section 140 of and Schedule 20 to the Rent Act 1977. The explanatory statement describes this as "purely consequential or incidental".[90]

131. Paragraph 1 of that Schedule provides for expenditure incurred by a landlord in carrying out work required by a notice under the Fire Precautions Act 1971 Act to be treated as expenditure on improving the premises. This will be taken into account in determining the rent which he is entitled to charge under a regulated tenancy. Paragraph 3 of that Schedule is also material to the rent that may be charged under a regulated tenancy where an order has been made under section 28 of the 1971 Act (see paragraph 113 above).

132. We considered that these provisions might constitute necessary protections, not only because they protect the landlord against unreasonable financial loss if he is required to carry out work to improve the premises, but also because they reduce any disincentive the landlord may have to carry out such improvements. We therefore asked the Department whether the effect of these provisions was achieved in the draft Order, and, if so, how.

133. The Department responded that paragraphs 1 and 3 of Schedule 20 to the 1977 Act have never effectively had any statutory force.[91] Schedule 20 applies to dwellings which are the subject of protected or statutory tenancies, as defined in section 18 of the 1977 Act. Paragraph 1 of Schedule 20 applies where a dwelling which is the subject of a protected or statutory tenancy consists of, or is comprised in, premises in respect of which a fire certificate has been issued under section 3 of the Fire Precautions Act 1971 covering the use of the premises as a dwelling. Since section 3 of the 1971 Act has never been commenced, paragraph 1 has never had any statutory effect.

134. Similarly, paragraph 3 of Schedule 20 applies only where an order under section 28 of the 1971 Act increases the rent payable in respect of premises let on a protected tenancy under section 18 of the 1977 Act. Since section 28 of the 1971 Act only applies where a notice under section 3 of the 1971 Act relating to premises is in force, and section 3 has never been commenced, paragraph 3 has no statutory effect.

135. We are satisfied that no necessary protection is removed in this respect.

Building Act 1984

136. The draft Order would repeal section 71 of the Building Act 1984. This provides that where a local authority considers that a building is not provided with sufficient entrances, exits, passages or gangways it must serve a notice requiring the owner of the property to carry out the required works and to make the necessary provisions.[92]

137. The provision has a clear application and purpose in terms of fire safety. Insofar as the protection provided relates to fire safety, it is adequately maintained by the specific provisions of article 14 of the draft Order, which places a duty on the person responsible for premises to arrange for adequate emergency routes and exits.

138. We considered it possible that section 71 of the Building Act had a wider purpose than that of achieving general fire safety. If that were so, then its repeal and replacement by a provision specifically geared to fire safety protection might remove other forms of protection. We therefore asked whether the object of section 71 of the Building Act 1984 was specifically related to fire safety, or whether it has an application which is not related to fire safety.

139. The Department confirmed that section 71 of the 1984 Act is specifically related to fire safety and has no other application.[93] We are content with the Department's explanation, and therefore consider that no necessary protection is removed in this respect.

Local Acts

140. The proposed Order would repeal fire safety provisions in a total of 33 local Acts. Concerns have been expressed that the explicit protection in several of the Acts would be removed. The Department has set out in relation to each Act what burdens it is intended to remove and how the necessary protection afforded is to be continued.[94] Mr Evans, of the FBU, told us that "many of the local Acts that are listed in the rear of the RRO contain . . . provisions [for escape and fire-fighting equipment] . . . they are quite definite provisions."[95]

141. We asked the Department what account had been taken of consultation responses which questioned the removal of specific protections in local Acts. The Department stated that the Government's policy is "to remove provision[s] in local Acts as and when they cease to be necessary": the draft Order would repeal only those provisions which are covered by national provision or the proposed Order.[96] The Department has reviewed the representations received in conjunction with the Buildings Regulations Advisory Committee and the Fire Safety Advisory Board. It considers that the provisions to be removed will cease to be necessary, since the necessary protections are contained in existing Building Regulations and the draft Order.

142. We have received no evidence which indicates that necessary protections will be removed if the proposed repeals in local Acts are made. In the absence of evidence to the contrary, we consider that necessary protection in this respect is maintained.

d. Consultation

143. The Department published the consultation document on 30 July 2002, and the consultation period closed on 22 November 2002. The Department agreed to take into account any responses received after that date.[97] Copies of the consultation document were sent to companies and organisations identified by the Department as likely to be affected by the legislation.[98] In addition the Department sent out a further 8,000 copies on request, and published the document on three Government websites.

144. 276 responses were received to the consultation: the respondents are listed in annex B to the explanatory statement. The Minister told us that the Department was "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."[99] At our request, the Department was able to make copies of the consultation responses available in September 2003, well in advance of the proposal's laying date. We are grateful for the Department's co-operation in this matter, which enabled Committee staff to make advance preparation for our scrutiny of the proposal.

145. We were less happy with the Department's presentation of the responses to the consultation. An analysis of the consultation responses was prepared and annexed to the explanatory statement.[100] We found this document of limited use. It fell into two parts: a high-level indication of the responses from each sector in favour and opposed to the proposal on a number of grounds (for example, necessary protections, new burdens, and costs and benefits), and then a more detailed aggregation of responses under several headings, which summarised the point of view expressed in a response in a headline and then gave the identification number of all responses which took that view on the point. We recognise that it is difficult to produce a meaningful and accurate summary of nearly three hundred consultation responses in a form which will be accessible to the reader; but we consider that more care could have been taken to produce a document which provided an accessible analysis of the points made in response to consultation. We remind Departments that explanatory statements are laid before Parliament as a whole. We consider that they should be accessible to Members of both Houses and to the public at large. In this instance the Department might have considered the broader readership of the response summary before providing a document which is fully intelligible only when read in conjunction with the entirety of the consultation responses.

146. The Department indicated that the Legislation Sub-Group of the Fire Safety Advisory Board considered the responses to the consultation to identify which proposals required amendment and which could be taken forward without further consultation.[101] Separate consultations were held with some respondents. The Department identified nine amendments which had been made to the proposal following these processes and in the light of the responses received. These amendments are set out in the explanatory statement. They include amendments to the proposed alterations notice and enforcement notice procedure, provision to allow the Secretary of State to determine enforcement disputes on technical issues, correlation between the draft Order and licensing law, changes to the enforcing authorities for sports grounds, a refinement of the definition of general and special fire precautions, and the removal of the proposals for forcible entry to investigate the cause of fire and for the duty of community fire safety.

147. We note that the Department did not choose to identify other changes made to the proposal which did not presumably arise as a result of consultation. We have referred at paragraph 96 above to the proposed duty to institute, develop and maintain an enforcement programme which the Department included in the consultation paper. This proposal received significant support, but was not included in the proposed Order because, as the Department explained, new methods of fire service management being introduced rendered it unnecessary.

148. Section 6(2)(l) of the Regulatory Reform Act 2001 requires the Minister to include in the explanatory statement laid as part of the proposal for a regulatory reform order details of any changes which have been made to his original proposals in the light of responses received to consultation. Although the change to the proposal which was made in this case was apparently not made in response to consultation, we consider that the proposed duty was sufficiently significant in the context of the draft Order that its removal from the proposal should have been indicated and explained in the explanatory statement, and we are concerned that it was not in this case.

149. We are required under the terms of our Standing Order to report to the House on whether the proposal has been the subject of, and taken appropriate account of, adequate consultation. On the evidence of the thoroughness of the consultation document, the number of such documents issued and the number of responses received, we consider that the consultation process has been adequate.

150. In the absence of a fully adequate summary and analysis of the consultation responses and the Department's response to them, we have been required to seek further evidence in order to assess whether the Department has taken appropriate account of the consultation. We asked our witnesses for their impressions of the process. Mr Evans of the FBU considered that the consultation process had been "well undertaken", although its conclusions had been overtaken by events;[102] he thought that many of the issues which the FBU had raised in response had been taken into account, save those which were the subject of the Union's submission to the Committee. Mr Marles of CFOA was "fairly happy with the process and the way it has gone forward":[103] apart from the issues CFOA had brought to the Committee, CFOA was "quite happy that [it had] been consulted."[104] Professor Everton, who sat on the Legislation Sub-Group of the Fire Safety Advisory Board which analysed the consultation responses, said that she was impressed with the care and attention given to the process: "I thought it was done with the utmost attention and in detail."[105]

151. We asked the Department what account it had taken of certain issues which had been raised in the consultation responses but did not seem to have been addressed in the explanatory statement. In particular, we were concerned to see in the summary of the consultation responses that a large number of respondents had been concerned about necessary protection issues, but the Department had provided no analysis of these. We therefore asked the Department to indicate the grounds on which the respondents had considered that necessary protection might not be maintained. The Department stated that most respondents were concerned that the precautions in place under the proposed regime would be less than if a fire certificate were issued and the relevant precautions listed on its face.[106] It concluded that this necessary protection would be maintained "by the application of legal responsibilities and the ability of an enforcing authority to monitor and check the precautions in place."

152. The Department set out seven further main headings under which respondents had raised concerns, including the sufficiency of funding for fire authorities to police the regime and train staff; the provision of a form of validation for high-risk premises; the particular difficulties encountered in enforcing safety standards in hotels and sports grounds; the quality of certification of fire safety products and services; the level of protection in provisions of local Acts it was proposed to repeal; the application of regimes in England and Wales and Scotland and the rights of fire authorities to set fire safety conditions in licensed premises. The Department has indicated that in each case it has considered the points raised and formed a judgment on them, most of which have been addressed elsewhere in the evidence provided by the Department either orally or in writing.

153. Following the Department's explanation, we are satisfied that the Department has taken appropriate account of adequate consultation in drawing up the proposal. We nevertheless consider that the Department's initial account of the consultation process and the issues raised as a result of consultation, as set out in the explanatory statement, fell below the standard of information which we believe should have been provided to Parliament on this proposal.

e. Charges on the public revenues

154. The Department states that the draft Order would not provide for the payment of fees or charges in consideration of any licence or consent, or of any services to be rendered.[107]

155. The Department has nevertheless identified some provisions of the draft Order which may impose charges upon public revenue:[108]

—  Article 24 gives the Secretary of State the power to make regulations. Exercise of this power would cause the Secretary of State to go to the administrative expense of consulting on and making regulations, but the exercise of the power is clearly at the Secretary of State's discretion.

—  Article 25(c) makes the Ministry of Defence's fire service the enforcing authority in respect of premises occupied by Crown forces, and would result in the Secretary of State for Defence incurring the resultant costs of enforcement. The Department states that since this provision re-enacts the effect of the Fire Precautions (Workplace) Regulations 1997, which are already in force, there is unlikely to be any additional enforcement cost.

—  Article 36 provides for technical disputes to be determined by the Secretary of State, which might involve administrative costs. The Department considers that these would be modest.

—  Article 46 obliges Government departments and other public authorities to consult the enforcing authority before taking any action in respect of premises which might affect their fire precautions. The Department believes that the administrative costs of consultation would be modest.

—  Article 49 applies the Order, in modified form, to the Crown and to the Houses of Parliament. The Department states that since the Fire Precautions Act 1971 and the Fire Safety (Workplace) Regulations 1997 already apply to the Crown and to Parliament in a similar way, no additional expenditure to comply with the obligations of the proposed Order is likely to be necessary.

f. Retrospective effect

156. The Department states that the draft Order would not have retrospective effect.[109] It would affect the ability of licensing authorities to set terms and conditions relating to general fire safety, but these provisions would not affect existing licensing conditions, as they would only take effect when the licensing conditions were varied or renewed. Article 43 of the draft Order would suspend the operation of licensing conditions for as long as the draft Order applied to the premises concerned, while article 44 would suspend the operation of pre-existing byelaws. The Department states that this re-enacts the effect of section 31 of the Fire Precautions Act 1971.

g. Vires

157. We do not have any doubts as to the vires of the proposed Order.

h. Elucidation and drafting of the proposal

Common parts of houses in multiple occupation (HMOs)

158. The Department has stated that HMOs are subject to housing law and not to fire safety law. Those parts of HMOs which are used as domestic premises fall outside the scope of the draft Order (article 6(1)(a)). We note that the Department appears to have passed up an opportunity to clarify and extend fire safety law to cover those parts of HMOs which are used as domestic premises.

159. The Department states that insofar as HMOs "have common parts or may be used as a place of work" the draft Order applies to them. The definition of "domestic premises" given in article 2(1) excludes external common parts of premises, so the draft Order applies to the external common parts of HMOs. It is less certain how the draft Order is to be applied to internal common parts of HMO premises, such as halls, stairways or landings.

160. We asked the Department to explain how the draft Order was intended to extend to the internal common parts of HMOs, given that the definition of "domestic premises" in article 2 of the draft Order appeared not to exclude such internal common parts. The Department has explained that the draft Order is intended to apply to the internal common parts of dwellings (such as HMOs), but not to dwellings used as private living accommodation (defined as "parts of a dwelling a person has a right to occupy on their own account and does not share with the occupants of other private living accommodation").[110]

161. Premises occupied as private dwellings are excluded from the draft Order under article 6(1)(a), but all other premises (apart from those expressly excluded by articles 6(1)(b) to (g)) are expressly included by the operation of article 6(2). We are content with the elucidation which the Department has provided on this point.

162. CFOA queried how article 17 of the draft Order, which requires fire safety equipment on premises covered by the Order to be maintained "in an efficient state, in efficient working order and in good repair", would apply in HMOs, where a fire detector placed in the common area of a building would be required to be maintained but a detector on the same system in a flat occupied as a private dwelling would not be required to be maintained.[111] CFOA further pointed out that damage to a front door of an HMO flat occupied as a private dwelling might adversely affect the fire protection afforded to the common parts of the HMO outside the door, but such damage could not be required to be repaired.

163. We consider that the drafting of the order as it applies to the maintenance of fire protection systems in houses in multiple occupation is unclear and may reduce the protection available for the common parts of HMOs. We recommend that the Department consider amending or clarifying the proposed Order to require that the responsible person must maintain all facilities, equipment and devices which may affect the common parts of an HMO, whether or not they fall within parts of the HMO which are defined as "domestic premises".

Issue of alterations notices

164. Article 29 of the draft Order provides that an enforcing authority may serve an alterations notice on a responsible person if the premises "constitute a serious risk to relevant persons". CFOA requested further guidance on the interpretation of the term "serious risk", since this would determine the level at which such issues should be addressed and the workload which might be created for fire services. CFOA considered that the term should apply to premises where the fire risks were addressed by engineering solutions and automatic systems, such as large retail premises and multi-story shopping centres "where the line from what can be classified as safe to dangerous conditions is very fine." CFOA considered that fire authorities should be informed if material alterations were to be carried out on such premises in all cases, even if the material alterations were covered by Building Regulations.

165. Mr Jack, speaking for the Department, considered that the risk at issue was that of death or injury in the event of fire. He conceded that the term "serious risk" was a subjective one, and therefore not susceptible to further definition: "I do not think there is a way round it. It has to be a professional making a judgment that the potential for someone to be killed or injured here is sufficient to warrant further action, as they would be in any form of enforcement activity." He nevertheless considered that the matter might be the subject of guidance on enforcement to be issued by the Secretary of State under article 26(2) of the proposed Order. In the Minister's opinion, guidance would give fire service professionals the flexibility to make judgments on the ground, but would ensure a degree of consistency.

166. We are not in a position to advise on the precise definition of "serious risk" in this context. We agree with the Minister that the matter is best defined by the experienced professional on the ground, operating within the parameters of guidance issued by the Secretary of State. We recommend that the Secretary of State issue guidance to fire authorities on the exercise of the power to serve alterations notices, and the definition of the term "serious risk".

167. We had a further concern with the drafting of article 29. Article 29(1)(b), as drafted, provides that the article applies to all premises which may constitute a serious fire safety risk to relevant persons "if any change is made to them or the use to which they are put". The drafting is such that the article would apply to all non-domestic premises insofar as their use might be changed at some unspecified point in the future.

168. The Department confirmed, in response to our questions, that it did not intend that an unlimited power to serve an alterations notice should be conferred by virtue of section 29(1)(b). The position the Department has sought to achieve is that "an alterations notice could only be served in relation to premises which either constituted a serious risk to relevant persons or [where] the likelihood of such a risk is reasonably foreseeable due to the nature of the premises and their use".[112] The Department considers that article 29 as drafted, though not unlimited, would confer a wide power to serve an alterations notice, which would allow enforcing authorities "to target [alterations] notices on those premises [they consider] pose the greatest risk to safety (or which might do so if there was an alteration to the premises).[113]

169. In our view, the drafting of article 29(1)(b) does not adequately reflect the Department's intention, and appears still to confer an unlimited power to serve a notice. We consider that the desired effect could be achieved by amending article 29 to provide that—

a)  the power to serve an alterations notice applies where the authority is of the opinion that the premises are as stated, and

b)  the alterations notice states the authority's opinion and specifies the matters which, in the authority's opinion, give, or may give, rise to a serious risk.

We consider that this approach more closely follows the drafting adopted in articles 30 and 31. It is more appropriate since it requires the case for serving the alterations notice to be demonstrated in each case.

170. We also consider that the emphatic "any change" in article 29(1)(b) ought to be amended to "a change". We do not consider that the Department's intention is to restrict the power to serve a notice to circumstances where any change, however trivial, must give rise to the risk. We recommend that article 29 be so amended.

171. Article 29(2) empowers an enforcing authority to serve an alterations notice on the responsible person in charge of premises which constitute a serious risk to relevant persons. Article 29(3) requires the responsible person in receipt of an alterations notice to notify the enforcing authority of any proposed changes to premises of a defined nature which might result in an increase of risk. The defined changes are set out on article 29(4): article 29(4)(c) refers to "an increase in the quantities of dangerous substances which are present in or on the premises".

172. The existing legislation, which is to be repealed and re-enacted, refers to dangerous substances present "in, on or under" the premises. We asked why the word "under" had been omitted from article 29(4)(c). The Department explained that the definition of "premises" in the proposed Order (article 2(1)) was broader than that in existing legislation in that it included any place: therefore any underground place in which dangerous substances were stored would fall within the definition of premises.[114] We are content that this provision is appropriately drafted.

Definition of "safe" and "safety"

173. "Safety" is defined in article 2 of the draft Order as "the safety of persons in the event of fire". Mr Tony Taig pointed out that this definition might be deficient, in that it could be interpreted to exclude fire precautions and fire prevention. He considered that a better definition of "safety" might be "the safety of persons in respect of harm caused by fire".

174. We agree with the comment made by Mr Taig, which seems particularly relevant in the context of the duty to take general fire precautions contained in article 8 of the draft Order. We therefore recommend that the Department consider amending the definition of "safety" in article 2 to make its extent more explicit.

i. EU obligations

175. The Department states that the draft Order would give effect, in England and Wales, to the following European Union obligations, insofar as they relate to general fire precautions to be taken by employers and insofar as more specific legislation does not make appropriate provision:

—  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;

—   Article 6 of, and paragraphs 4 and 5 of the annexes to, Council Directive 89/654/EEC ("the Workplace Directive"), a directive concerning the minimum safety and health requirements in the workplace;

—  Council Directive 98/24/EC ("the Chemical Agents Directive"), on the protection of the health and safety of workers from the risks related to chemical agents at work, and

—  Council Directive 99/92/EC ("the Explosive Atmospheres Directive"), on minimum requirements for improving the safety and health protection of workers potentially at risk from explosive atmospheres.[115]

176. In the Department's view, the proposals are compatible with the UK's European Union obligations.

177. The FBU raised with us the apparent incompatibility of articles 13 and 14 of the draft Order with the Workplace Directive. We have addressed the Union's representations and the Department's response at paragraphs 66 to 77 above. We consider that the Department has demonstrated that the wording of articles 13 and 14 is consistent with the requirements of Annex 1 to the Workplace Directive.

178. We find no reason to consider that the proposal is incompatible with any obligation arising from the United Kingdom's membership of the European Union.

j. Rights and freedoms

179. The Department does not consider that the proposal would prevent anyone from exercising a right or freedom which they might otherwise expect to exercise. It states that the draft Order would impose requirements and prohibitions on persons in connection with premises, but it considers that these are both necessary and proportionate to ensure the protection of persons who use the premises or who may be affected by a fire on the premises.[116]

180. Section 36 of the 1971 Act conferred a right upon local authorities to make loans to meet expenditure on altering residential buildings as required by a fire authority. We considered that this might be in the nature of a right or a freedom. In the absence of any express indication in the draft Order, we asked the Department whether, and how, the provision was to be continued.

181. The Department answered that the right under the 1971 Act has never had legislative effect, since the provision it depends on (section 3 of the 1971 Act) has never been commenced.[117] It pointed to a broader power in the Housing Act 1985 which makes essentially similar provision for local authorities to advance money for alterations to a house.

182. We do not consider that the proposed Order affects any existing rights or freedoms.

k. Proportionality and fair balance

New and re-enacted burdens in the draft Order

183. The Department has briefly described, in the explanatory statement, the new and re-enacted burdens in the draft Order and has set out how they meet the statutory tests of proportionality, desirability and fair balance.[118] The Department's analysis is assessed below.

184. The Department states that it is "self-evident" that the draft Order, in its substantive provisions, would create burdens which would affect persons in the carrying on of their activities. In particular the Department identifies part 2 of the draft Order (articles 8 to 24) and articles 29, 30, 31, 37 and 38 as provisions which apply to the responsible person in control of premises.

185. We address the Department's analysis of the principal new burdens below. We do not intend to analyse each new burden in detail: where we have not provided a full analysis of a new burden, it is listed at paragraph 211, together with a reference to where the Department's explanation is to be found in the explanatory statement. There are two instances where the Department failed to provide a sufficient explanation of the new burden to be imposed, but has subsequently done so in response to our questions.

---

33   Mr Andrew Lansley MP, then Opposition spokesman on the Cabinet Office: HC Deb, 5 April 2001, col 589 Back

34   Fifteenth Report from the House of Lords Committee on Delegated Powers and Deregulation, Session 1999-2000, Draft Regulatory Reform Bill, HL Paper (1999-2000) 61, Q 13 Back

35   Mr Graham Stringer MP, then Minister for the Cabinet Office, HC Deb, 2 May 2001, col. 873 Back

36   Explanatory statement, para 33 Back

37   First Special Report, Session 2001-02 Back

38   HC (2001-02) 389, para 16 Back

39   Explanatory Notes to the Regulatory Reform Act 2001, para 47 Back

40   HC (2001-02) 389, para 16 Back

41   S.O. No. 18 Back

42   Ev 3, para 4.3 Back

43   Q 7 [Mr Evans] Back

44   Ev 9, para 5. We assume that the case concerned is the Court of Appeal case of City Logistics v. Northamptonshire Fire Authority, [2001] EWCA Civ 1216. Back

45   Ev 3, para 4.6 Back

46   Q 94 Back

47   Ibid. Back

48   Q 95 Back

49   Ibid. Back

50   Ev 33 Back

51   Ev 9, para 3.1 Back

52   By section 4(2) of the Fire Safety and Safety of Places of Sport Act 1987. Back

53   Ev 10, para 6.3 Back

54   Ev 33 Back

55   Mr Evans of the FBU appeared to state (at Q 8) that this provision of the 1971 Act was inserted by section 15 of the Fire Safety and Safety of Places of Sport Act 1987 (the 1987 Act), but had never been commenced. In fact all provisions of section 5(3) are in force. A separate provision placing a duty on fire authorities to cause premises to be inspected, which has never been commenced, was inserted into section 18 of the 1971 Act by section 10(8) of the 1987 Act: see Annex 3 and Appendix G. Back

56   Sections 6(1) and 6(2) of the 1971 Act Back

57   Explanatory statement, para 112 Back

58   Explanatory statement, para 111 Back

59   Explanatory statement, para 116 Back

60   Ev 15. Professor Everton's evidence was given in a personal capacity and without reference to her former membership of the Fire Safety Advisory Board. Back

61   e.g. Ev 2 [Fire Brigades Union] Back

62   Ibid., para 2.3 Back

63   Q 68 Back

64   Ev 2, para 2.6. The proposal was raised in the Department's consultation paper A consultation document on the reform of fire safety legislation, Office of the Deputy Prime Minister, July 2002, paras 5.58-5.61 Back

65   Q 8 Back

66   Explanatory statement, Annex C, "Enforcement programme" Back

67   Home Office/Scotland Office, November 1997 Back

68   A consultation document on the reform of fire safety legislation, para 5.58 Back

69   Q 113 Back

70   Ibid. Back

71   Q 115 Back

72   Q 116 Back

73   Q 9 Back

74   Q 68 Back

75   Explanatory statement, para 342 Back

76   Q 14 Back

77   Appendix B, para 3 Back

78   Although the Department does not intend to make provision for regulations under article 24 to continue the effect of the Fire Safety (Sub-surface Railway Stations) Regulations 1989: see paragraph 122 below. Back

79   Appendix B, para 6 Back

80   Ibid., para 7 Back

81   Ibid., para 8 Back

82   Ibid., para 11 Back

83   S.I. 1989/1401, as amended by S.I. 1991/259 and S.I. 1994/2184 Back

84   Appendix F: letter from John McDonnell MP, Convener of the RMT Union Parliamentary Group Back

85   Appendix H, Q 48 Back

86   S.I. 2000/2688 Back

87   S.I. 1989/1401, regulation 10(4) Back

88   Regulation 12(1) Back

89   Not printed Back

90   Explanatory statement, paragraph 64 Back

91   Ibid., para 13 Back

92   Explanatory statement, para 245 Back

93   Appendix B, paras 16-17 Back

94   Annex B lists the Acts affected and indicates where the issues of necessary protection are addressed in the explanatory statement. Back

95   Q 7 Back

96   Appendix D, Q 23 Back

97   Explanatory statement, para 28 Back

98   The list is at annex B of the explanatory statement. Back

99   Q 87 Back

100   Explanatory statement, annex C Back

101   Explanatory statement, para 31 Back

102   Q 2 Back

103   Q 17 Back

104   Q 18 Back

105   Q 47 Back

106   Appendix D, Q 21 Back

107   Explanatory statement, para 376 Back

108   Explanatory statement, para 377 Back

109   Explanatory statement, para 381 Back

110   Appendix B, para 18 Back

111   Ev 10 [Chief Fire Officers' Association] Back

112   Appendix B, para 23 Back

113   Ibid., para 25 Back

114   Appendix B, para 26 Back

115   Explanatory statement, para 382 Back

116   Explanatory statement, para 333 Back

117   Appendix B, para 27 Back

118   Explanatory statement, paras 334-359 Back

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Prepared 2 August 2004