PART 3 of the FIRE (SCOTLAND) ACT 2005
and related subordinate legislation
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LEGISLATION OVERVIEW |
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1. This note contains an overview of the legislation which forms or is consequential to the fire safety regime for non-domestic premises in Scotland, namely Part 3 of the Fire (Scotland) Act 2005, as amended (“the 2005 Act”) and associated subordinate legislation. It should be noted that separate Explanatory Notes on the 2005 Act are available, although these were prepared during the passage of the Bill and do not take account of changes that have subsequently been made to the text of the Act.
2. In considering the content of this overview it should be remembered that the 2005 Act and associated orders and regulations (as amended from time to time) take precedence. This note should therefore be read in conjunction with the relevant legislation and is not, and is not meant to be, a comprehensive description of the legislation. Users are advised to refer to the legislation referred to throughout this document as the definitive source of powers, duties and obligations and, if in doubt about any aspect, to seek independent legal advice.
3. All sections of Part 3 of the 2005 Act commenced in full on 1st October 2006. Part 3 introduced a fire safety regime for Scotland which replaced previous fire safety legislation. The principal legislation which was repealed or revoked was:
· the Fire Precautions Act 1971 (“the 1971 Act”)
· the Fire Certificates (Special Premises) Regulations 1976 (“the 1976 Regulations”).
· the Fire Precautions (Workplace) Regulations 1997 (“the 1997 Regulations)”
· the general fire safety provisions of the Management of Health and Safety at Work Regulations 1999 (“the 1999 Regulations”)
4. Consequential modifications were also made to other UK and Scottish primary and subordinate legislation to reflect Part 3 of the 2005 Act coming into force.
5. General fire safety is within the legislative competence of the Scottish Parliament with some exceptions. Process fire precautions is a matter reserved to the UK Parliament under Section H2 of Schedule 5 to the Scotland Act 1998. The obligation in the fire safety regime to take fire safety measures does not include an obligation to take process fire precautions. The term "process fire precautions" is not defined in statute but is widely used and understood as being distinct from general fire safety. Essentially, "process fire precautions", which include risk assessment, are designed to prevent the outbreak or spread of fire from any work processes, taking into account process risk which can be perceived as the danger, due to the work process, that fire will break out. This is to be distinguished from "general fire safety" which relates to the means of fire warning, fire fighting and escape, thereby dealing with the means to ensure people can escape safely once a fire has started.
6. To reduce duplication and prevent overlapping regimes, the effect of fire safety conditions, terms and restrictions imposed by licensing and registration schemes has been restricted and the potential application of the Health and Safety at Work etc Act 1974 (“the 1974 Act”) to general fire safety has been disapplied although there are some exclusions and a savings provision.
7. In considering the fire safety element of the 2005 Act, it should be noted that amendments have been made to Part 3 by S.I. 2005/2060 (The Fire (Scotland) Act 2005 (Consequential Provisions and Modifications) Order 2005) and S.S.I. 2005/352 (The Fire (Scotland) Act 2005 (Relevant Premises) Regulations 2005).
8. S.I. 2005/2060 is a UK Government order made under section 104 of the Scotland Act 1998 which, amongst other things, makes changes relevant to the application of the fire safety regime in Scotland. It applies the fire safety regime to defence premises and to ships (with some exceptions) and the HSE and Defence Fire and Rescue Service are made enforcing authorities. Although these are reserved matters, section 104 enables the UK Government to make provision concerning reserved matters in consequence of provision made by or under an Act of the Scottish Parliament such as the Fire (Scotland) Act 2005.
9. S.S.I. 2005/352 amended the definition of relevant premises in section 78 in respect of construction sites and premises to which Part 1 of Schedule 1 to the 1976 Regulations applied. This reflected a transfer of legislative competence to the Scottish Parliament by virtue of S.I. 2005/865 (The Scotland Act 1998 (Modifications of Schedule 5) Order 2005.
10. Reference should also be made to the provisions of the Fire Safety (Scotland) Regulations 2006 (S.S.I. 2006/456) (“the 2006 Regulations”). The fire safety regime in Scotland is contained both in primary legislation (the 2005 Act) and subordinate legislation (the 2006 Regulations). Both impose obligations on dutyholders, neither can be considered in isolation.
11. Some of the obligations imposed in the regime are intended to ensure continuing compliance with EC directives on workplace health and safety.
12. Information about the new regime and guidance to assist dutyholders comply with their new responsibilities are available on the firelaw website at www.infoscotland.com/firelaw.
13. This table contains the number and name of the subordinate legislation which is relevant to the fire safety regime.
Table. Statutory Instruments relevant to fire safety
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Statutory Instruments |
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S.I. 2005/2060 |
The Fire (Scotland) Act 2005 (Consequential Provisions and Modifications) Order 2005 |
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S.S.I. 2005/352 |
The Fire (Scotland) Act 2005 (Relevant Premises) Regulations 2005 |
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S.S.I. 2006/456 |
The Fire Safety (Scotland) Regulations 2006 |
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S.S.I. 2006/457 |
The Fire (Scotland) Act 2005 (Consequential Modifications and Savings) (No. 2) Order 2006 |
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S.S.I. 2006/458 |
The Fire (Scotland) Act 2005 (Commencement No. 3 and Savings) Order 2006 |
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S.S.I. 2006/475 |
The Fire (Scotland) Act 2005 (Consequential Modifications and Savings) Order 2006 |
These instruments can be accessed at www.infoscotland.com/firelaw
PART 3 OF THE FIRE (SCOTLAND) ACT 2005
CHAPTER 1 - FIRE SAFETY DUTIES
14. Chapter 1 contains sections which impose obligations in terms of general fire safety on employers, other dutyholders and employees. There will often be a number of different dutyholders with obligations for each relevant premises to which Part 3 applies.
Section 53 - Duties of employers to employees
15. Section 53 contains an employer’s duty to ensure the fire safety of employees in respect of a workplace. ‘Employee’ and ‘workplace’ are defined in section 79. This section only applies to workplaces that are ‘relevant premises’ as defined in section 78. The effect of this section is to give employers responsibility for the safety of their employees in case of fire. This applies even where others also have obligations in respect of the premises. An employer’s obligations in respect of the fire safety of non-employees, sits within section 54.
16. Subsection (1) identifies that the employer’s level of duty is to ensure the fire safety of employees in the workplace ‘so far as is reasonably practicable’. Reasonably practicable is a standard lesser than practicable. Reasonably practicable is about weighing the quantum of risk against the sacrifice involved in the measures necessary to avert that risk. Thus the seriousness of the risk is weighed against the difficulty, effort and cost of removing or reducing the risk. In considering cost, no allowance is made for the size, nature or profitablity of the undertaking concerned. Measures should be taken unless the sacrifice involved in removing a risk is grossly disproportionate to the benefits of risk reduction that would be achieved by that sacrifice.
17. Subsection (2) requires an employer to carry out a fire safety risk assessment of the workplace to identify risks and to take fire safety measures which are necessary to achieve compliance with subsection (1). The obligations apply whether or not the requirements relate to matters within their control. There is therefore a difference between this duty and that found in section 54. In section 54 persons who have control of premises to a certain extent, have a duty only to the extent of that control.
18. Subsection (3) requires that when a fire safety risk assessment has been carried out, an employer must review the assessment in accordance with regulations, and fire safety measures that are identified as necessary, as a result of this review should be taken to achieve compliance with the general duty under subsection (1). Regulations 3 to 6 of the 2006 Regulations contain the review requirements.
19. Subsection (4) identifies that the ‘fire safety measures’ referred to in subsections (2) and (3) are the measures listed in schedule 2 to the Act. Paragraph 2 of schedule 2 makes it clear that these measures do not include process fire precautions.
Section 54 – Duties in relation to relevant premises
20. Section 54 identifies the persons who have responsibility for the fire safety of premises to which Part 3 applies, to ensure the fire safety of ‘relevant persons’ in relevant premises. “Relevant persons” is defined in section 79 and are persons who are or may be lawfully in the premises and persons in, or who may be in, the immediate vicinity of the premises whose safety would be at risk in the event of fire in the premises. Employees of a fire and rescue authority or a joint fire and rescue board are excluded from the definition when they are engaged in operational tasks. “Operational task” is defined in section 79.
21. In respect of workplaces, whereby section 53 requires an employer to ensure the fire safety of employees, section 54 imposes obligations on an employer to ensure the safety of non employees, to the extent that the employer has control of premises. Where an employer requires to carry out a fire safety risk assessment by virtue of both section 53 and section 54, then that employer’s employees are not considered relevant persons for the purpose of section 54 by virtue of the definition of relevant person in section 79. Such employees are already protected by the section 53 duty. Section 54 may however impose obligations on non-employers where they have control of premises, in respect of the fire safety of an employer’s employees.
22. Subsections (1) and (2) require that a person who has control to any extent of relevant premises must carry out a risk assessment to identify fire safety risks to relevant persons in respect of harm caused by fire in the relevant premises and take fire safety measures which are necessary to ensure the safety of relevant persons. This duty applies to all persons who have control of relevant premises and applies to the extent of that control. Fire safety measures to be taken are those which it is reasonable for a person in that position to take to ensure the safety of relevant persons in respect of harm caused by fire in the premises.
23. Where the person in control of relevant premises under subsection (1) is neither the owner nor a person carrying on an undertaking, subsection (3) requires the owner of the relevant premises to carry out a risk assessment and take necessary fire safety measures under subsection (2). This is in addition to the obligations which sit with other persons who have control of premises.
24. Subsection (4) extends the requirement to carry out a fire safety risk assessment and put in place fire safety measures, to persons who have an obligation, of any extent, as a result of tenancy or contract in respect of maintenance, repair or fire safety, to the extent of their obligation.
25. Subsection (5) requires the persons who have an obligation to carry out a fire safety risk assessment under section 54, to review that fire safety risk assessment in accordance with regulations and to take such fire safety measures as is reasonable for a person in that position to take. The duty to review the assessment is in regulation 3 of the 2006 Regulations.
Section 55 – Taking of measures under section 53 or 54: considerations
26. While sections 53 and 54 contain provision for the taking of fire safety measures, section 55 lists considerations which should be taken into account when dutyholders are taking these fire safety measures. These measures were previously applied to fire safety by regulation 4 of the 1999 Regulations where they are described as general principles of prevention.
Section 56 – Duties of employees
27. This section contains duties which are imposed on an employee while at work. ‘At work’ is defined in section 79. Every employee should take reasonable care for their own safety in respect of fire and of any other relevant persons who may be affected by their acts or omissions at work. The employee should also co-operate with the employer, so far as is necessary to enable the employer to comply with their obligations and duties under Part 3 of the Act. This is similar to the duty in section 7 of the 1974 Act.
Section 57 – Risk assessments: power to make regulations
Section 58 – Scottish Ministers’ power to make regulations about fire safety
Section 59 – Power to make further provision for protection of fire-fighters
28. Sections 57 to 59 enable regulations to be made in connection with Part 3 of the Act.
Section 60 – Special case: temporary suspension of Chapter 1 duties
29. Section 60 seeks to ensure that fire safety duties will not prevent armed forces, police constables and other persons prescribed in regulations from carrying out their normal duties.
30. Subsection (1) disapplies the Chapter 1 duties where they would prevent certain persons from carrying out operational duties, but only during the period when the person is carrying out those operational duties. Subsection (2) identifies the category of person that this exception applies to, namely the armed forces of the crown, visiting forces, police constables and others as may be prescribed by regulations. Until the power to prescribe further persons under this regulation is exercised, a saving is made in S.S.I. 2006/457 which continues in force a provision in the 1997 Regulations which disapplied fire safety regulations in respect of emergency workers.
31. Subsection (3) provides a qualification on the extent of the disapplication. Where the application of Chapter 1 duties to a person are temporarily suspended by virtue of section 60, that person must ensure so far as possible the safety of relevant persons in respect of harm from fire.
32. Subsection (4) provides a definition of ‘operational duties’ for the purpose of this section.
33. Chapter 2 contains provisions in respect of enforcing authorities and enforcement powers
Section 61 – Enforcing authorities
34. Section 61 identifies those authorities which will enforce the legislation and includes related enforcement provisions. The categories are clear but in the event of doubt as to who is the appropriate enforcing authority for individual premises or the extent of an enforcing authority’s responsibility (such as where premises fall within more than one description or is put to a different functional use at different times) enforcing authorities should discuss and agree responsibilities on the basis of legal advice received.
35. Subsection (1) requires each enforcing authority to enforce the Chapter 1 duties, while Subsection (2) requires that in carrying out their duty, enforcing authorities will have regard to any guidance given by the Scottish Ministers.
36. Subsection (3) allows enforcing authorities to appoint enforcement officers for the purpose of carrying out the enforcement duty. Previous legislation used the term, ‘inspector’, but this has been replaced by ‘enforcement officer’.
37. Subsections (4) and (5) provide that the Chief Inspector of Fire and Rescue Authorities, in the capacity of an enforcing authority, can appoint as an enforcement officer, a person who is an enforcement officer appointed by a relevant authority. This appointment must be authorised in writing and must be made with the consent of the relevant authority. This is an updated equivalent of the arrangement previously contained in section 40(4) of the 1971 Act. The use of this arrangement could, for example, allow an enforcement officer of a joint fire and rescue board (or fire and rescue authority) to carry out a fire safety audit in premises for which the Chief Inspector of Fire and Rescue Authorities is the enforcing authority.
38. Subsection (6) repeats the constraint that, in Scotland, an enforcing authority cannot institute proceedings.
39. Subsection (7) gives relevant authorities the power to arrange with the Health and Safety Commission for such of the authority’s functions under Part 3, to be performed on its behalf by the Health and Safety Executive in relation to any particular workplace. This continues the provision that was in section 18(2) of the 1971 Act. Subsection (8) is a provision which allows the same arrangement to be made with other persons, to be prescribed by regulations. This power has been used to make regulation 25 of the 2006 Regulations which allows the making of an arrangement between a relevant authority and the Office of Rail Regulation.
40. Subsection (9) (as amended by S.I. 2005/2060) specifies the five enforcing authorities for Part 3 in respect of relevant premises. There has been some transfer of responsibilities in respect of certain premises when compared to previous fire safety legislation. The enforcing authorities and the premises for which they have responsibility are:
- The Health and Safety Executive (HSE) in respect of
i) certain nuclear installations as specified;
ii) a ship which is in the course of construction, reconstruction, conversion or repair by persons other than the master and crew of the ship; or
iii) a workplace which is or is on a construction site within the meaning of regulation 2(1) of the Construction (Health, Safety and Welfare) Regulations 1996, (other than sites to which regulation 33(1) applies: these are sites in otherwise occupied premises).
- The Defence Fire and Rescue Service in respect of:
i) Relevant premises occupied solely for the purposes of the armed forces of the Crown other than HM Ships which are subject to construction, reconstruction, conversion or repair;
ii) Relevant premises occupied solely by visiting forces or certain designated international headquarters or defence organisations; or
iii) Relevant premises which are situated within premises occupied solely for the purposes of the armed forces of the Crown, but not themselves so occupied, other than ships subject to construction, reconstruction, conversion or repair by persons other than the master and crew of the ship.
- The local authority in respect of:
i) A major sports ground which requires a safety certificate under section 1 of the Safety of Sports Grounds Acts 1975, or
ii) A sports ground to which Part III of the Fire Safety and Safety of Places of Sport Act 1987 applies (a ground in which there is a regulated stand); and the regulated stand itself.
This reflects a change in enforcement responsibility; as previously a relevant authority was the enforcing authority for the workplace fire precautions legislation[1] in these sports grounds.
- The Chief Inspector of Fire and Rescue Authorities in respect of relevant premises where Chapter 1 duties fall to:
§ The Crown (other than as set out above), or
§ The UK Atomic Energy Authority (other than nuclear premises if they fall to HSE enforcement).
This reflects a change in approach in describing Crown premises: previous fire safety legislation used the descriptions ‘owned by the Crown’ and ‘occupied by the Crown’.
- The Relevant Authority (as defined in section 6) (Joint Fire and Rescue Board/Fire and Rescue Authority) in respect of all other relevant premises. Where premises are relevant premises and they do not fall within the responsibility of the preceding enforcing authorities, then enforcement will fall to the relevant authority. This reflects a change in enforcement responsibility. A relevant authority is now enforcer for some premises which previously fell to another enforcer, such as some sites to which the 1976 Regulations applied, and also for some premises which were outwith the scope of previous fire safety law.
41. Subsection (10) allows Scottish Ministers, by regulation, to modify the enforcing authorities and the premises for which they are responsible.
Section 62 - Powers of enforcement officers
42. Section 62 sets out the powers that enforcement officers have in carrying out enforcement duties in respect of relevant premises. These powers can only be exercised as is necessary to enforce the fire safety regime by a person who has been appointed as an enforcement officer by virtue of section 61(3) of the Act. The powers are similar to the powers of inspectors previously contained in section 19 of the 1971 Act but are expanded to more closely match the powers of health and safety inspectors under the 1974 Act.
43. Subsection (1) empowers an enforcement officer to do anything necessary for the purpose of carrying out enforcement duties while subsection (2) contains a list of specific powers for enforcement officers in respect of relevant premises.
44. Subsection (3) requires an enforcement officer to provide evidence of authority before or when exercising the power of entry, if requested.
45. Subsection (4) requires that if an enforcement officer uses the power to take samples, a notice must be left with a Chapter 1 dutyholder at the premises confirming the action and giving details of the article or substance. If it is impractical to leave the notice with a person, the notice should be fixed in a prominent position at the relevant premises. A portion of the sample should be given to that person if this is practical.
46. Subsection (5) refers to an enforcement officer carrying out the power to dismantle an article causing or thought likely to cause danger. The enforcement officer is required to seek specialist advice, if considered necessary, to determine if there is any danger involved in the proposal. This is a common sense safeguard which would apply when dealing with situations or items which are beyond the knowledge and experience of the enforcement officer.
47. Subsection (6) requires that when an enforcement officer exercises the enforcement powers to inspect, copy, measure, test or dismantle, this should be carried out in the presence of a Chapter 1 dutyholder in the premises, if requested.
48. Subsection (7) requires that if an enforcement officer uses the power to take possession of an article or substance, a notice must be left with a Chapter 1 dutyholder at the premises confirming the action and giving details. If it is impractical to leave the notice with a person, it should be fixed in a prominent position at the premises.
49. Subsection (8) considers a situation where an enforcement officer may have entered premises which are unoccupied or where the occupier is not present. The enforcement officer on leaving must leave these premises as secure against entry as they were when found.
Section 63 – Prohibition notices
50. Section 63 provides that an enforcing authority is able to prohibit or restrict the use of relevant premises in serious cases by use of a prohibition notice. Prohibition notices are based on the previous provisions of section 10 of the 1971 Act and the power is broadly comparable. It is designed for the more serious cases to prevent loss of life or serious injury. Existing prohibition notices issued under the 1971 Act continue in force by virtue of a saving provision in article 3 of S.S.I. 2006/475. The rules for the serving of documents are contained in section 76 and regulation 27 of the 2006 Regulations.
51. Subsection (1) empowers an enforcing authority to issue a prohibition notice. The provision in the 1971 Act whereby the notice must be served on the occupier of premises is maintained, to ensure that the persons at risk are informed immediately.
52. Subsection (2) identifies that the circumstances which justify a prohibition or restriction, involves or will involve a risk to relevant persons so serious that use of the relevant premises ought to be prohibited or restricted. Subsection (3) specifies that in assessing the seriousness of the risk to relevant persons an enforcing authority must in particular have regard to anything affecting relevant persons’ escape from the relevant premises in the event of fire.
53. Subsection (4) specifies what a prohibition notice should contain.
54. Subsection (5) provides that a prohibition or restriction contained in a prohibition notice shall take effect immediately it is served if the enforcing authority consider that the risk of serious personal injury is or will be imminent, and in any other case will take effect at the end of the period specified in the notice.
55. Subsection (6) provides that a prohibition notice may specify remedial steps to be taken. This optional feature in a prohibition notice is likely to have less relevance than it did under the 1971 Act, given the wider enforcement powers now available to enforcing authorities.
56. Subsection (7) requires an enforcing authority, before serving a prohibition notice in relation to a house in multiple occupation, to notify the local authority of their intention and the use which they intend to prohibit or restrict, where practicable.
57. Subsection (8) provides that an enforcing authority may withdraw a prohibition notice in writing at any time.
Section 64 - Enforcement notices
58. Section 64 contains provision in respect of the use of enforcement notices by the enforcing authority in cases where the enforcing authority considers that there is non-compliance with the Chapter 1 duties (other than the employee's duty in section 56). This provision is similar to the power to issue an enforcement notice under the 1997 Regulations. The rules for the serving of notices are contained in section 76 and regulation 27 of the 2006 Regulations.
59. Subsection (1) gives an enforcing authority the power to issue an enforcement notice if the enforcing authority consider that a person has failed to comply with the Chapter 1 duties. An enforcement notice can therefore be issued to any person to whom section 53 or 54 applies. This could be an employer, tenant or contractor with obligations, owner, employee or any other person who has control of relevant premises. An enforcement notice however cannot be issued to an employee in respect of compliance with the section 56 duty (see paragraph 66 below)
60. Subsection (2) specifies what an enforcement notice must contain. It must
- state that it is considered that there is non-compliance with the Chapter 1 duties,
- specify why the enforcing authority considers there is non-compliance, and
- require the person to take action to remedy the non-compliance within such period as may be specified in the notice. This period must not be less than 28 days. The recipient of the notice has the option to appeal to the court within 21 days of service.
61. Subsection (3) allows an enforcing authority, when they issue an enforcement notice, to extend that notice to a workplace (or employees) for which they are not the enforcing authority. This can be done where they are of the opinion that a person has failed to comply with any Chapter 1 duty relating to that other workplace or employees. The notice may include requirements concerning that other workplace or those employees; subsection (4) requires the enforcing authority to consult the enforcing authority for the other workplace before including any such requirements in a notice.
62. Subsection (5) makes it a duty for an enforcing authority to consult others, prior to serving an enforcement notice which would oblige a person to make an alteration to relevant premises. This procedure will identify any conflict between the proposal and building and health and safety law and any other relevant legislation. The consultation is required with;
· The building standards verifier within the meaning of the Building (Scotland) Act 2003;
· The Health and Safety at Work enforcing authority, if the relevant premises is a workplace; and
· Any other person whose approval to the alteration is required by an enactment.
63. A local authority could be consulted by an enforcing authority by virtue of being the building standards verifier and/or the Health and Safety at Work enforcing authority. Subsection (6) contains a common sense provision that disapplies the requirement for consultation with the building standards verifier in cases where the local authority is the enforcing authority for Part 3 and is also the building standards verifier.
64. Subsection (7) provides that a failure to carry out the required consultation prior to enforcement notice issue, does not make the enforcement notice invalid.
65. Subsection (8) provides that an enforcing authority may withdraw an enforcement notice by means of a notice at any time before the end of the period specified in the enforcement notice. Where an appeal against the enforcement notice is not pending, the enforcing authority may extend or further extend the period specified in the enforcement notice.
66. Subsection (10) prevents an enforcement notice being used to compel employees to comply with the duty to take reasonable care or to co-operate with the employer, which is imposed by section 56.
Section 65 – Alterations notices
67. Section 65 introduces a procedure for issuing alterations notices, which can be used at the discretion of the enforcing authority. The alterations notice procedure is new and has been introduced to allow enforcing authorities to require notification of proposed changes in higher risk premises. An alterations notice can only be served in relation to relevant premises which either constitutes a serious fire risk to relevant persons or where, if particular changes are made to the relevant premises, such as to their nature or use, it is likely that a serious fire risk would be posed to relevant persons. Provisions concerning service of notices are contained in section 76 and regulation 27 of the 2006 Regulations.
68. The issue of an alterations notice does not prevent the appropriate person from undertaking the changes proposed. However, it requires them to notify the enforcing authority in advance of the change(s) being made and allows the enforcing authority the opportunity to intervene if they consider this appropriate, before the changes are made.
69. Subsection (1) allows an enforcing authority to serve an alterations notice on an appropriate person in respect of relevant premises, ‘appropriate person’ is defined in subsection (8).
70. Subsections (2) and (3) identify the circumstances under which an alterations notice can be issued. This is where premises would pose a serious risk to relevant persons in respect of fire or where the making of specified changes would be likely to introduce a serious risk.
71. Subsection (4) provides that where an alterations notice has been served in respect of premises, the appropriate person (as defined in subsection (8)) must, before making any of the specified changes which may result in a serious risk, notify the enforcing authority of the proposed changes. Subsection (5) specifies the changes. These are in respect of the premises; services, fittings or equipment; the use to which the premises are put, or where there is an increase in the quantities of dangerous substances present.
72. Subsection (6) gives an enforcing authority the power to include in an alterations notice, a requirement for the appropriate person to keep records of specified information and to include additional specified information when notifying any change to the enforcing authority.
73. The option to specify record keeping in an alterations notice, applies to any record keeping relevant to risk assessment and fire safety arrangements, which has been specified by regulation. This applies to the recording requirements in regulations 8, 9 and 10 of the 2006 Regulations. Regulations 8, 9 and 10 already impose compulsory record keeping requirements in the circumstances specified in the 2006 Regulations (see paragraphs 154 and 155 of this note). An alterations notice can therefore extend this recording requirement to other premises. This optional recording requirement is cross referenced in regulations 8(c) and 10(2)(c) of the 2006 Regulations.
74. Optional information that can be requested to accompany a notification of change is a copy of the risk assessment and a summary of the changes proposed to be made to the existing fire safety measures.
75. Subsection (7) allows an enforcing authority to withdraw an alterations notice by means of a notice.
76. Subsection (8) defines ‘appropriate person’ as anyone who has duties under sections 53 or 54.
Section 66 – Appeals
77. Section 66 contains provision for appeal to the sheriff against the operation of a prohibition, enforcement or alterations notice. This section is similar to the appeal provisions of the 1971 Act.
78. Where an appeal is made, subsection (1) allows the sheriff to make an order revoking, varying or confirming the notice. The appeal can be made by the person on whom the notice is served or, where it is a prohibition notice, by any dutyholder in respect of the premises to which the prohibition notice relates. Subsection (2) specifies that an appeal can be made to the sheriff within 21 days from the day on which a notice is served.
79. Subsection (3) provides that in the case of an appeal against an alterations notice or an enforcement notice, the bringing of the appeal has the effect of suspending the operation of the notice until an order is made by the sheriff or until the appeal is abandoned. An appeal against a prohibition notice does not have the effect of suspending the operation of the prohibition notice.
80. Subsection (4) provides that the sheriff can, in respect of an appeal against a prohibition notice, issue a suspension order which will have the effect of suspending the operation of the prohibition notice. This will be a temporary arrangement lasting only until an order is made giving a final decision on the appeal or until the appeal application is abandoned.
81. Subsection (6) specifies that the procedure for an appeal is by way of summary application.
Section 67 – Determination of disputes
82. Section 67 introduces a new non-judicial review procedure for use in situations where the enforcing authority and a dutyholder fail to agree on compliance issues. Use of the procedure is not compulsory but enforcing authorities are expected to make the dutyholder aware of the process where appropriate.
83. Subsection (1) provides that a disputed matter can be referred to the Chief Inspector of Fire and Rescue Authorities for determination in cases where the enforcing authority and dutyholder cannot agree on the measures which are necessary to ensure compliance with the Chapter 1 duties, and where both parties agree for the determination procedure in this section to be used. The requirement that a referral can only be made on a joint basis is to prevent misuse of the procedure.
84. Since the Chief Inspector of Fire and Rescue Authorities also has a role as an enforcing authority under Part 3, subsection (2) provides that in this case, a determination request can be made to Scottish Ministers.
85. Subsection (3) is a regulation-making power.
86. Subsection (4) provides that where there has been an application and a determination has been made, the enforcing authority may not serve an enforcement notice which would be in conflict with the determination. It can be seen from this restriction that the use of the determination procedure is meant to be carried out prior to any formal enforcement action. This is in keeping with good enforcement practice where a dutyholder’s failings should be pointed out and an opportunity given to discuss the issues prior to formal enforcement action (other than cases of serious risk). Subsection (5) provides that the restriction on an enforcing authority serving an enforcement notice in subsection (4) does not apply where, since the date of the determination, there has been a change to the premises or use of the premises such that the risk to relevant persons has significantly increased.
Section 68 – Prohibition of charging employees
87. This section provides that no employer shall charge an employee in respect of anything done or provided by the employer in pursuance of compliance with the Chapter 1 duties. This is similar to previous prohibition on charging imposed in the 1999 Regulations.
Section 69 – Civil liability for breach of statutory duty
88. Subsection (1) states that nothing in Part 3 is to be construed as conferring a right of action in any civil proceedings other than proceedings for recovery of a fine but subsection (2) provides that an employee has a right of action in civil proceedings where a breach of a duty imposed on an employer by virtue of Part 3, has caused damage. This maintains the position previously in regulation 9A of the 1997 regulations.
Section 70 – Consequential restriction of application of Part 1 of Health and Safety at Work etc. Act 1974
89. The 1974 Act has wide potential application and could be used for the control of general fire safety measures in premises which are also subject to more specific fire safety law. Subsection (1) disapplies the 1974 Act and any regulations and orders made under that Act in respect of general fire safety for devolved issues, which is now dealt with under the 2005 Act, in order to remove the potential for dual application.
90. Subsection (2) restricts the disapplication in subsection (1); the disapplication will not apply where the 2005 Act enforcing authority is also the enforcing authority within the meaning of the 1974 Act. This will allow the dual application potential to continue but, subject to the saving for COMAH premises in article 3 of S.S.I. 2006/458, this will only apply to premises where the same enforcing authority enforces both Acts. This allows enforcement, which may include fire safety and health and safety issues, to be made as a single enforcement action in a joined up approach.
Section 71 – Suspension of terms and conditions of licences dealing with same matters as this Part
91. This section seeks to ensure that fire safety matters will be dealt with under Part 3 (and related regulations) and not in licensing, certification or registration provisions in other enactments. The section provides that terms, conditions or restrictions contained within a licence, or certification or registration scheme issued under an enactment are of no effect insofar as they relate to a matter that could or have been imposed by Part 3. This is designed to reduce the overlap of regimes. This section re-enacts the position under Section 31 of the 1971 Act which applied to premises with a fire certificate, but with much wider application.
92. Notwithstanding the general application of section 71, some consequential amendments have been made to specific legislation in order to ensure clarity for the user.
93. Subsection (1) applies this section to premises which require a licence under an enactment which provides for the licensing of premises or persons and where the licensing authority can impose terms, conditions or restrictions. This section therefore applies to premises with an appropriate licence and also to those which are yet to be issued with a licence.
94. Subsection (2) disapplies any term, condition or restriction imposed in connection with the issue of a licence in so far as it relates to any matter in relation to which requirements or prohibitions are or could be imposed by Part 3.
95. Subsections (3) and (4) state that the issue of a licence includes its renewal, transfer and variation and that licensing includes registration and certification schemes.
96. Subsection (5) provides that where the licensing authority is also the Part 3 enforcing authority then this section does not apply. This will be where relevant premises are subject to Part 3 enforcement by the HSE or the local authority. However this subsection specifically excludes cases where the licensing authority is also a relevant authority. This is where a local authority is a licensing authority and is also a relevant authority because it is a fire and rescue authority. In such cases licensing conditions will have no effect in terms of fire safety in premises subject to Part 3 enforcement by a relevant authority.
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Section 72 – Offences (as amended by S.I. 2005/2060)
97. Section 72 contains provision for offences and associated penalties in respect of compliance failure. The most serious offences are subject to a maximum penalty on summary conviction of a fine not exceeding £20,000 or on conviction on indictment to imprisonment not exceeding 2 years or to a fine, or to both. In other cases on summary conviction the statutory maximum applies and on conviction on indictment the penalty is a fine. Other less serious offences are subject to lesser maximum penalties.
98. Subsection (1) makes it an offence for a dutyholder to fail to comply with a duty in section 53, 54 or 55, subsection (2) makes it an offence for an employee to fail to comply with the general duty of employees at work contained in section 56, and subsection (3) extends the offence provision to non-compliance with regulations made under section 57 or 58. In each of these cases, non-compliance alone does not constitute an offence, it must be accompanied by the risk of death or serious injury to relevant persons in the event of fire. These offences therefore are only committed where a serious consequence might result or has occurred.
99. Subsection (4) contains a list of specific free standing offences.
100. There are four levels of penalty provision contained in subsections (5) to (8). These penalties and offence provisions are replicated in an abbreviated form in the table in appendix 1.
101. Subsection (5A) modifies the penalty for certain offences in respect of ships and certain defence premises.
102. Subsection (9) states that it is a defence for a person to prove that they took all reasonable precautions and exercised all due diligence. There are two offences where this defence is excluded by virtue of subsection (10). This is where either there has been an offence under subsection (1) relating to non-compliance with the employer’s duty in section 53 or where an offence under subsection (3) relating to non-compliance with a requirement or prohibition to which the person is subject to comply with so far as is reasonably practicable by virtue of regulations and which puts a relevant person at risk of death or serious injury in the event of fire. Regulation 11 of the 2006 Regulations is the only regulation imposing obligations ‘so far as is reasonably practicable’ and therefore breach of that regulation cannot be defended on the basis of due diligence.
103. In proceedings in relation to the offence under subsection (1) in respect of a failure to comply with the duty in section 53 (duty to ensure fire safety of employees so far as is reasonably practicable), subsection (11) provides that the onus of showing that it was not reasonably practicable to do more than was done is on the accused. This is similar to the provision on the burden of proof in section 40 of the 1974 Act (relating to the employer's duty in section 2 of the 1974 Act to ensure the safety of employees at work so far as is reasonably practicable). The reverse legal burden of proof set out in section 40 of the 1974 Act was considered by the Court of Appeal in R v Davies (David Janway) [2002] EWCA Crim 2949 and found to be compatible with the European Convention on Human Rights since it was justified, necessary and proportionate.
104. Subsections (12) and (13) create an automatic reverse burden of proof (i.e. the onus is on the accused to show that it was not practicable or reasonably practicable) whenever regulations made under section 57 or 58 impose a "so far as is practicable" or "so far as is reasonably practicable" duty or requirement, the breach of which results in an offence under section 72(3). This is a change from previous fire safety law.
Section 73 – Offences by bodies corporate and partnerships
105. Subsection (1) provides that where an offence by a body corporate is proved to have been due to consent or connivance or attributable to neglect by a director, manager, secretary or other similar officer of that body, or a person purporting to act in any such capacity, that person is also guilty of that offence and is liable to be proceeded against and punished.
106. Subsection (2) provides that subsection (1) also applies to the acts and defaults of a member in connection with management functions where the affairs of a body corporate are managed by its members.
107. Where an offence has been committed by a partnership, subsection (3) provides for a partner to be guilty of an offence as well as the partnership where it is proved that the offence has been committed with the consent or connivance of a partner, or is attributable to their neglect.
Section 74 – Offences due to fault of other person
108. Subsection (1) provides that where the commission of an offence by a person under Part 3 is due to the act or default of another person, then the other person can be guilty of the offence. (This other person may or may not be someone who has Chapter 1 duties). Subsection (2) provides that the other person can be charged regardless of whether proceedings are taken against the first person. This continues an important provision which was in section 24 of the 1971 Act.
Section 75 – Employee’s act or omission not to afford employer defence
109. Section 75 provides that the act or omission of an employee is not a defence for an employer in the commission of an offence. Regulation 26 of the 2006 Regulations further specifies that the actions of competent persons nominated for particular tasks in accordance with those regulations, similarly do not afford a defence.
Section 76 – Service of documents
110. This section, which is largely modelled on section 38 of the 1971 Act, contains provision in terms of service of documents and should be read with regulation 27 of the 2006 Regulations which contains further provision.
111. Subsection (1) lists the methods by which a document can be served on a person, these are;
· By delivering it to the person or by posting or leaving it at their proper address;
· In the case of a body corporate which is not a limited liability partnership, delivering, posting or leaving it with the secretary or clerk of the body;
· In the case of a limited liability partnership, by delivering, posting or leaving it with a member of the partnership; or
· In the case of a partnership, delivering, posting or leaving it with a partner or a person having the control or management of the partnership business.
112. Subsection (2) provides that, with certain exceptions, the proper address of any person is his last known address. The exceptions are listed.
113. Subsection (3) specifies that in the case of a company or partnership constituted under a law other than that of the UK, the proper address is the principal UK office.
114. Subsections (4) and (5) allow the potential recipient of a document to specify another UK address where someone will accept documents.
115. Subsection (6) is a regulation-making power.
Section 77 – Crown application (as amended by S.I. 2005/2060)
116. Subsection (1) binds the Crown in respect of compliance with Part 3 and regulations made under section 57 or 58, subject to the following provision.
117. Subsection (1A) disapplies some compliance, enforcement and offence provisions in respect of premises where the Defence Fire and Rescue Service is the enforcing authority. This disapplication maintains a consistent approach across GB for fire safety in defence premises.
118. Subsection (2) prevents the Crown from being criminally liable in respect of non compliance with Part 3 or regulations made under section 57 or 58, but an enforcing authority can apply to the Court of Session to declare non compliance by the Crown unlawful.
119. Subsection (3) provides that the provisions of Part 3 and regulations made under section 57 or 58 apply to persons in the service of the Crown in the same way as they apply to others.
120. Subsection (4) confirms that right of entry cannot be exercised in respect of premises occupied by the Crown.
121. Subsection (6) applies Part 3 to premises owned or occupied by the Parliamentary Corporation in the same way to premises owned or occupied by the Crown.
Section 77A - Application to visiting forces etc (introduced by S.I. 2005/2060)