Select Committee on Office of the Deputy Prime Minister: Housing, Planning, Local Government and the Regions Written Evidence


Memorandum by Ann Rosemarie Everton, Emeritus Professor, University of Central Lancashire (FRS 52)

1.  PRELIMINARIES

  I would point out that the views I express are purely personal.

  And further, I would acknowledge the particularity of the content of my submission. It relates to fire prevention and, in that context, solely to the forthcoming Regulatory Reform (Fire Safety) Order (2005), (hereinafter "the Order").[15] I note, though, that Mr Jim Fitzpatrick MP, Parliamentary Under Secretary, ODPM, regards the Order as ". . . underpinning the prevention agenda . . .", [16]and I am thereby encouraged to think that you might find my observations relevant to the Inquiry.

2.  OBSERVATIONS

  I would like to make observations regarding two matters, the first is enforcement of the Order, the second is the on-going debate over the relationship of the new Order's régime and the Fire Precautions (Sub-surface Railway Stations) Regulations, 1989[17] (hereinafter the "Underground Regulations").

(i)   Enforcement of the Order

  The perspective of enforcement which I would like to raise is that of the level to which enforcement might be carried out, this being a subject which has attracted much attention. [18]Despite the undoubted efforts of the Civil Service and the great commitment of the Fire Service, I regret that my fears for its adequacy in the context of higher risk premises are only partly allayed.

  In consequence, I would draw to your attention a paper on the issue entitled "Fire Safety Enforcement—a hostage to fortune"",[19] in which its author, Mr Glyn Evans[20] addresses his long felt concern for the future of enforcement. He adverts to reasons given by Mr Phil Hope MP (the then Minister) for the latter's contentment with the managerial pressures built in to the associated machinery, and responds thereto. I share Mr Evans' stance, and submit to you my espousal of the same. [21]

  In this connection, I would make a tentative suggestion. To the forefront of the facets of doubt as to the sufficiency of the machinery's robustness is the lack of recommendation in the relevant Guidance as to the frequency of inspections. It has occurred to me that it might be assistful if it were to become the case that, in the development of risk-based inspection programmes, the Fire and Rescue Authorities ("FRAs") should not have so much discretion in the determination of the periodicity of inspections. Could there not be expressly included in Fire Service legislation a statutory presumption that a given minimum percentage of higher risk premises should be reviewed every given maximum number of years? In the light of financial constraints, it could be no more than a presumption (and, as such, rebuttable), [22]but at least it would mean this critical feature were left less "at large".

(ii)   The relationship of the new Order's régime and the "Underground Regulations"

  In the course of the development of the Order, this relationship has yielded significant debate and understandably so in the light of the Regulations' tragic provenance. At the heart of the exchanges has been the question whether they should be retained or removed and replaced with Guidance.

  A view has been held that their removal in favour of a risk-based approach could lead to a compromising of safety standards. Against this, there has been set the view that they could be replaced with Guidance, and such Guidance, when linked with other legislation such as the Railways (Safety Case) Regulations, 2000, [23]would result in the maintenance of the necessary protection.

  From the statement laid by the ODPM in accordance with Section 6 of the Regulatory Reform Act, 2001, it appears that the latter stance is prevailing, and that the Regulations are to be retained until Guidance is produced.

  Thus it would seem that the latter view has both gained the ascendancy and is being furthered. I wonder whether this approach will fully accommodate the position for the long term, and if the following suggestion might aid a better resolution: Rather than introduce what might be termed "simple" Guidance, would it be worthwhile to introduce Guidance which possessed some statutory "potency", such as is for example possessed by approved codes of practice under the Health and Safety at Work Act, 1974? [24]To take such a step might more effectively fill any gap perceived to be left by the loss of the Regulations, while at the same time acknowledge the trend of current thinking.









"Section 16 of the 1974 Act provides for the issue and approval of codes of practice `for the purposes of providing practical guidance' in relation to the requirements of sections 2-7, or health and safety regulations under the Act. By virtue of section 17, a failure on the part of any person to observe any provision of an approved code of practice does not itself render that person liable to civil or criminal proceedings. Whilst such a code does not have direct effect, any provision in such a code which appears to a court to be relevant to an alleged contravention of a requirement or prohibition is admissible in evidence. If it is proved that there was, at any material time, a failure to observe any provision of a code which the court considers to be relevant for the prosecution to prove in order to establish a contravention of a requirement or prohibition, that matter will be taken as proved unless the court is satisfied that the requirement or prohibition was, in respect of that matter, complied with otherwise than by way of observance of that provision of the code."


15   S.I. 2005 No 1541. Back

16   He refers to it in a Keynote speech to the FSDG, at the November Parliamentary Seminar. Back

17   S.I. 1989 No 1401 (as amended). Back

18   I would refer to the airing of the subject by the House of Lords Delegated Powers and Regulatory Reform Committee, the House of Commons Regulatory Reform Committee and the Office of the Deputy Prime Minister ("ODPM"). [See respectively, HL Paper 153, HC 684 and the Statement laid before Parliament in accordance with Section 6 of the Regulatory Reform Act, 2001. I would add that I am grateful for the chance afforded me to make a modest contribution to the debate.] Back

19   Fire, August 2005, Vol 9, No 1202, pp 29-30. Back

20   Fire Safety Adviser to the FBU. Back

21   In short, Mr Evans' anxieties stem from the lack of recommendation in the relevant Guidance (Circular 29) as to the frequency of inspections, the lack of accountability targets specifically aimed at measuring the effectiveness of Fire and Rescue Authority fire safety enforcement programmes, and the paucity of attention paid to fire safety enforcement in the National Framework. Back

22   The grounds for rebuttal would have to be so established as to make the presumption meaningful but, at the same time, acknowledge the scarceness of funding. Back

23   S.I. 2000 No 2688. Back

24   I would enlarge upon this suggestion by quoting The law of Health and Safety at Work, by Frank B. Wright (Sweet and Maxwell, 1997) at p 107: Back


 
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