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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