Laying down the law - June 2018

SINCE OCTOBER 2006, I have defended or prosecuted over 170 cases under the Regulatory Reform (Fire Safety) Order 2005. I am a higher courts advocate, so I deal with cases before both the Magistrates’ Court and the Crown Court. For various reasons, most defendants plead guilty to fire safety charges so nobody appeals to the Court of Appeal and there is no case law in relation to the interpretation of the Order.

That does not mean that the Order does not require clarification or amendment. Over the last 12 years opposing advocates Magistrates’ Court clerks, district judges and Crown court judges have on numerous occasions expressed concerns regarding the drafting of the Order.

It is unlikely that the courts will be able to provide much assistance in the interpretation of the Order within the foreseeable future. I’m not aware of any appeals, regarding a point of law in respect of the Order, finding their way to the Court of Appeal. Any reform would have to come through statutory instruments for a revision of the Order, which is easier than with primary legislation. In my view, these areas should be considered for reform as a matter of urgency.

The most obvious area for reform is in the area of identifying responsible persons under the Order. I have no doubt that it is this aspect of the Order, which causes the most confusion, not only to fire officers, but also to those responsible for the safety of their premises. 

Presently, Article 3 deals with the definition of ‘responsible persons’ and Article 5 deals with ‘persons with control’. While I understand that employers should be distinguished from other responsible persons to ensure compliance and consistency with the Health and Safety at Work Act, the combination of Articles 3 (b) (i), and (ii), together with Articles 5 (3) and (4) create confusion and the lack of clarity when establishing those against whom enforcement should be taken. Article 5 (3) imposes the same responsibilities laid out in Article 3 on those with any control over premises (the extent of their control). I cannot see why Article 3 cannot be made much simpler by replacing Article 3 (b) with the contents of Articles 5 (3) and (4).

A reform of this nature would ensure that all those with control of premises would be called responsible persons and the confusing aspect of Article 3 (b) would be removed. Articles 30, 31 and 32 treat those with control premises in exactly the same way as they treats responsible persons so no further amendments would be required in respect of enforcement issues.

Article 8 

Presently, Article 8 is used for two separate purposes. Due to the lack of a substantive Article in relation to fire separation and compartmentation within buildings, Article 8 and general fire precautions Article 4(a) is used in a convoluted way to deal with the lack of fire separation.

Article 8 relates to general fire precautions at 8(a) in relation to the safety of employees and 8(b) in relation to none employees. Many companies now, in particular with premises such as hotels and nursing homes are setting up a corporate structure where the employer is an administrative company liable only for the payment of wages with other management companies responsible for the running of the premises. This means that the employer does not have control over the workplace. This leads to difficulty with enforcing Articles 19 and 21 which refer specifically to the duties of the employer to their employees.

The enforcement of Fire Safety Order deals primarily with “general fire precautions”. The Health and Safety at Work Act deals with ‘process risk’. This leads to a grey area where there is a lack of general housekeeping in relation to premises in relation to combustible materials (eg dust), which is not dealt with but could be said to no longer be a product of process risk. In the Bosley explosion there was considerable debate around this particular area. Clarification, or amendment is necessary. In my next column I shall take a look at why there needs to be further clarification on articles 27, 30, 31 and 32.

Warren Spencer managing director of Blackhurst Budd Solicitors. You can see more articles from Warren at www.firesafetylaw.co.uk