17. This guide and its contents constitute guidance given by the Scottish Ministers in terms of section 61(2) of the Fire (Scotland) Act 2005, as amended. Part 3 of the Fire (Scotland) Act 2005, as amended, and related subordinate legislation set out the fire safety duties for the majority of premises in Scotland, with the exception of private dwellings. Premises used as an office or shop or for similar activities will be subject to the Act and related subordinate legislation. In general, the legislation seeks to ensure the safety of persons (whether they are employees, visitors or others) in the premises in respect of harm caused by fire, by setting out fire safety responsibilities.
18. Some offices and shops required a fire certificate under previous legislation. One of the changes brought in by the Fire (Scotland) Act 2005, as amended, is the removal of the need for premises to be issued with a fire certificate. Where offices and shops have previously been issued with a fire certificate, such fire certificates will have no legal force and fire safety in premises will be achieved by compliance with the legislation identified in paragraph 17 above.
19. The legal duty which is imposed by the legislation seeks to achieve safety in the event of fire and can be considered in terms of seven general requirements:
20. Guidance on complying with these requirements is considered in more detail in the remaining chapters. It should be noted that this chapter of the guidance is not intended to be a comprehensive summary of requirements under the Fire (Scotland) Act 2005, as amended, and related subordinate legislation. Anyone in any doubt about their legal obligations should seek their own independent legal advice.
21. The responsibility for complying with these fire safety duties sits with the employer and other persons who have control of the premises to any extent, such as tenants, contractors and volunteers working on site may also have some responsibilities. Employers are required to ensure the safety of employees so far as is reasonably practicable. This means that the sacrifice in terms of time, effort, expense, and any other disadvantages associated with the provision of fire safety measures should be weighed against the magnitude of the fire risk if they were not taken.
22. All other persons with fire safety responsibilities in respect of the premises are required to take all reasonable measures regarding the safety of persons in, or in the immediate vicinity of, the premises. Where premises or responsibilities are shared, each employer, owner or other person who has control over any part of the premises is required to co-operate and co-ordinate in respect of complying with fire safety law and to inform each other of risks.
23. The responsibility for compliance with the legislation sits principally with the persons who operate and work in the premises, but there is also provision in the legislation for an enforcing authority with enforcement powers.
24. The Fire and Rescue Authority or Joint Fire and Rescue Board for the area will be the enforcing authority in respect of the majority of premises to which this guide applies.
25. There are exceptions which are:
26. The powers of enforcement officers (other than the Defence Fire and Rescue Service, to which the remainder of this chapter is not relevant), in relation to premises for which they have enforcement responsibilities are listed in section 62 of the Act and are summarised below:
27. Enforcement officers may do anything necessary to allow them to enforce the safety duties, including:
28. If the enforcing authority is dissatisfied with the outcome of the fire safety risk assessment or the action taken, or the fire safety measures in place, it has the power to take action which could be:
29. Enforcing authorities are required to take into account the content of this guide to assist in determining whether enforcement action may be necessary but in doing so they should have a flexible approach to enforcement and should not use the benchmarks in the Technical Annexes as prescriptive standards. This would be a misinterpretation, as the objective is to use the relevant benchmarks when assessing the existing fire safety measures and the guidance provided in the Technical Annexes may be a method of assisting with the reduction of the risk.
30. Where there is disagreement with the enforcing authority on compliance issues, there is a mechanism for joint referral for third party independent determination. The enforcing authority will supply details in relevant cases. There is also a right of appeal to the court against formal enforcement action.
31. Additionally, if the premises pose a serious risk to persons in respect of harm caused by fire, or would pose such a risk if particular changes were made to the premises, the authority may issue an alterations notice that obliges the recipient to inform the enforcing authority before making specified changes to the premises.
32. In all cases when dealing with an enforcing authority, it is important to be able to distinguish between fire safety measures that are necessary for the protection of life and which are required to comply with fire safety legislation, as opposed to any fire safety measures that provide a higher standard than is necessary to comply with fire safety legislation, such as measures provided for the protection of property or the continuation of business.
33. Fire and Rescue Service crews may visit premises to enable crew members to gain familiarisation with them in the event they are called to a fire in the premises. This type of visit is unlikely to include an assessment of compliance with fire safety law. The fact that a Fire and Rescue Service visit has taken place should not be interpreted as an endorsement of fire safety standards and procedures in the premises.