Fire safety enforcement: a hostage to fortune: as the Regulatory Reform Order is about to come into force consolidating over 60 disparate pieces of fire law, a leading fire safety expert asks whether enforcement and self compliance is driven by economic factors rather than public safety

ONE OF THE ISSUES THAT has concerned me for some time is the future for fire safety enforcement and whether it is to be a hostage to fortune that is to be driven more by Fire and Rescue Service economic factors than a need to maintain the current levels of public and employee safety from fire beyond their homes. I will try to set out my concerns and perhaps you might consider them and draw your own conclusions because I doubt that there are any firm answers to this conundrum. There may be parallels to be drawn, however, with other areas of general health and safety legislation, notably rail safety.

Welcome Order

In April 2006 the Regulatory Reform (Fire Safety) Order will come into force. It will be the first major piece of fire safety legislation to emerge in 35 years and will in England and Wales repeal and replace the simple and effective, but administratively burdensome, Fire Precautions Act 1971 and the unfortunate and Largely ineffective Fire Precautions (Workplace) Regulations 1997 (as amended).

At long Last the Order will put one statutory fire safety regime in place. It will be a regime which is similar to that imposed by the Health and Safety at Work Act 1974 and which is sometimes known as self compliant regulation. It will be enforced by the fire and rescue authorities. Where the Order is superior to the 1971 Act is that it allows the fire and rescue authorities policy making flexibility to target their enforcement activities against high risk premises, rather than being driven by applications for fire certificates. I believe that this is to be welcomed.

Nevertheless, as a result of the undoubted effectiveness of the 1971 Act in dealing with workplace and hotel/guest house fire safety, one of the many factors that concentrated the minds of the men and women that formed the ODPM committee created to provide expert advice on drafting the Order was how to ensure that both public confidence in a serf compliant statutory system and public safety would be maintained at the levels that they were under the UK wide system of fire certification.

The answer for the Committee was glaringly obvious; in the case of the Order public confidence and public safety from fire beyond their own homes would rest exclusively upon the enforcement activities of the fire and rescue authorities. If the fire and rescue authorities fail in this duty then the safety of the public becomes a hostage to fortune, ie, how dutiful in complying with the law are those persons upon whom the primary responsibility falls for ensuring the safety in case of fire of the general public and their employees?

Order Enforcement

Let us just examine what this all means in reality. As a fire safety officer with many years experience on the streets I know, as do many of my colleagues, that generally there are three types of approach that you will meet when dealing with those who have a responsibility for fire safety or general health and safety matters:

* There are those who will take their responsibilities seriously and will deal with them to the best of their ability at all times

* There are those who are concerned about safety matters, but are unsure of what to do so they will wait until a safety inspector arrives at their premises and then do something usually on the instruction of the inspector, and

* There are those who will do absolutely nothing at all unless threatened with legal action and then sometimes only after that action has taken place.

What experience also tells me is that sadly the first group are in a minority and generally tend to be the larger national and multi-national companies who can afford to employ their own in-house safety departments or to buy in expertise.

The second group form the vast majority and are normally small and medium size enterprises; their approach does not mean that they are deliberately negligent of the law, but just that fire safety is not their main business priority and they need expert help with it. They do not want to expend effort or money unnecessarily, a point of view which I can fully understand.

The third group are, again in my experience, a small, but often very vocal minority who will use every means at their disposal to try to circumvent or flout the Law, whatever that law is.

As a result I hope that you will understand that the Level of enforcement of the Order and the enforcement programming by fire and rescue authorities become critical to maintaining the current high levels of public and employee safety from a fire. The criticality of the enforcement process became dearer as the Order progressed through the Committee stages of the Houses of Parliament.

Ministerial Order

In the House of Commons Regulatory Reform Committee Eleventh Report of Session 2003-4--Proposal for the Regulatory Reform (Fire Safety) Order 2004, you will find enforcement was both on the minds of the Committee members and those who gave evidence to it. Those giving evidence included myself on behalf of the FBU, Professor Rosemarie Everton, Professor of Fire Law, Department of Built Environment, University of Central Lancashire, and Mr Tony Taig of ITAC Limited.

The questions asked by the Committee and the evidence given in return is too extensive to set out here. However, the enforcement issue was pursued by members of the Regulatory Reform Committee when the Minister with responsibility for the Order, Phil Hope MP, appeared before them on June 29, 2004. When questioned regarding the need for a duty upon fire and rescue authorities to undertake enforcement of the Order, the need for them to develop enforcement programmes to do so and what happens if they did not, Phil Hope made the following statements:

* "... the draft Order does place a duty on the enforcing authority to enforce the Order and they must have regard to any guidance that the Secretary of State may issue on that subject"

* "The national framework will put in place a dear responsibility to get on with the job of ensuring that enforcement takes place. It is a combination of local integrated risk management plans and the national framework to ensure that this will result in the kind of enforcement that you are concerned about", and

* "We have the Fire Inspectorate which has a role in promoting good practice. We are introducing comprehensive performance assessments into the system too in the same way that local government and local fire and rescue authorities will be assessed ... That combination of the IRMPs, risk based management planning, the national framework, the contract and the performance framework, the CPA will provide the necessary managerial pressure upon the services to improve their performance where it is found that they need to do so." (1)

So that's all right then, or is it? Well, let us examine Phil Hope's answers in a little more depth.

He is quite correct in his first assertion--the draft Order does indeed place a duty on the enforcing authority to enforce the Order and they must have regard to any guidance that the Secretary of State may issue on that subject. Article 26 of the Order deals with those matters. So has any guidance on enforcement been issued to the fire and rescue authorities? Well yes it has. A document comprising Fire Precautions Act 1971 Circular No 29, Fire Authority Integrated Risk Management Planning (IRMP)--Guidance Note 4 and Fire Service Circular 2/2004 was issued in January 2004.

This Circular gives guidance to fire and rescue authorities on developing a risk assessment based approach to managing a fire safety inspection programme. It is full of advice on how a risk based inspection programme may be created, however in paragraph 4.14 it shies away from recommending inspection frequencies to the fire authorities because of course these would predict resource levels.

It also suggests that some premises in the lower risk categories may not be subject to regular inspection, but could be monitored on a sampling basis. Call me old fashioned if you like, but in my experience you have to go and find out what risk a premise really constitutes before you decide whether you can sample it later. Please believe me when I say there is no substitute for on site inspections.

Order Order

So perhaps this is not the replacement for the enforcement programmes supporting fire certification that the Regulatory Reform Committee might have anticipated. Fire and rescue authorities do however receive a warning in paragraph 4.15 which says: 'In order to demonstrate that a fire authority is meeting the legislative responsibilities at every stage the processes by which the levels of risk and the resulting inspection frequency activity have been determined should be recorded, transparent and auditable'.

The question here is auditable by whom and measured against what? Fire and rescue authorities will indeed be audited as part of their Comprehensive Performance Assessment (CPA) by the Audit Commission, but in relation to fire safety enforcement against what is the big question in my mind?

Let us move on and look at the second answer that Phil Hope gave regarding the importance to the enforcement issue of the content of the national framework. I shall refer here to The Fire and Rescue National Framework 2005/6. In that document there are just two paragraphs on the issue of fire safety and they are placed under the heading of the Regulatory Reform Order, which is somewhat concerning as it is not in force yet.

This is what they say: 'Authorities must therefore have a fire safety inspection programme and this must form part of its IRMP, as set out in IRMP Guidance Note 4, which gives advice on risk based enforcement.

'Fire and Rescue authorities should--in drawing up their enforcement programmes--prioritise inspection of places that, in case of fire, pose a significant risk to life'. (2)

So, we have simply returned full circle to the Circular that we discussed above which offers guidance on creating a risk based fire safety enforcement process, ie, how, but offers the reader no guidance upon inspection frequencies, ie, when.

Finally, let us look at Phil Hope's statement on the question of enforcement. What if a fire and rescue authority fails in its duty to enforce the Order and what sanctions are there? His answer to those questions again hinges upon the accountability of fire and rescue authorities for their fire safety enforcement programmes through the new auditing processes and targets put in place by the ODPM.

Unfortunately, there are no Public Service Agreement targets or Best Value Performance Indicators (BVPIs) specifically aimed at measuring the effectiveness of fire and rescue services fire safety enforcement programmes. The nearest BVPI to the fire safety enforcement issue is BVPI 207--the number of fires in non-domestic premises per 1,000 non-domestic premises. But what are the targets for this or is it simply a matter of not exceeding current levels of fires in such premises?

This is why I feel that despite all the ODPM's promises on the issue of fire safety enforcement it is now a hostage to fortune and that involves the question 'how much will it cost fire and rescue authorities to staff and resource such programmes when there are no real targets for them to achieve or to be audited against'?

I hope I am wrong because the Order gives the fire and rescue authorities a potentially very effective statutory vehicle to deal with the risk of fire in the buildings and workplaces that it covers. Only time will tell, however, whether the hostage to fortune is released or perhaps a darker fate waits.

Footnotes

(1) House of Commons--Regulatory Reform Committee Eleventh Report of Session 2003-4--Proposal for the Regulatory Reform (Fire Safety) Order 2004--Evidence 30

(2) The Fire and Rescue National Framework 2005/6

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