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INANANNIVERSARY YEAR IT IS appropriate to look back. In this piece, which is the first of two parts I am asking the reader to see along a pathway stretching over three decades to the period immediately preceding the advent of the Fire Precautions Act, 19711. I would invite him or her to revisit that advent, the circumstances which followed it, the emergence of the Fire Precautions (Workplace) Regulations, 19972, and the circumstances which, in their turn, both followed upon those regulations, and lead up to the appearance of the Regulatory Reform (Fire Safety) Order, 20053. I make the invitation in the light of the interest which is currently being taken in the faring of the modernised approach to the ‘fire challenge’ (including that of the order). So far as the order itself is concerned, I think its history yields an insight worthy of consideration.
Looking Back
In 1969, there occurred a fire at the Rose and Crown Hotel in Saffron Walden in which 11 people sadly died. Not long after, the Fire Precautions Act, 1971, was passed. For some while there had been criticism of the fragmented state of fire safety legislation which lay outside Building Control, and the criticism had led to calls for rationalisation.
The official view was that law regarding fire should be split into two branches – building regulations to deal with new and altered premises, and a new act passed to deal with premises once occupied4. The ‘new act’ passed, ie the 1971 Act, was designed gradually to render obsolete much of the existing fragmented fire safety legislation, and to replace it with a consistent régime. To this end, it established a system based on an extended concept of certification. It set out a lengthy list of uses of premises any of which the Secretary of State might, by means of an order, designate as a use requiring a fire certificate. Once designated, the occupier of such premises would fall under an obligation to secure a fire certificate from the fire authority, and the latter became required to issue such a document if certain fire precautions requirements were met. (Measures including inter alia that the means of escape, the means for fighting fire, and the means of giving warning, etc were such as might reasonably be required in the circumstances). The first order to be made designated certain hotels and boarding houses, and the designation of certain further uses came later.
Via the designating orders made, the regulatory net of the act was in due course to be far-reaching5. However, expense proved an obstacle in the path of further designations which had been originally contemplated, with the result that to a considerable extent (though not as greatly as before) the law in this area remained a ‘patchwork quilt’.
This result, linked with other factors such as a growing perception that the scheme of the 1971 Act was proving an inflexible and uneconomic tool, was to mean that the desire for rationalising reform increased in intensity – even though alongside the mounting reformatory zeal was the fact that the Act was achieving, over the years, considerable success in fire safety across a whole spectrum of premises. Against this rather mixed background, the law reformers had an uphill task. Directing their efforts, moreover, was an obligation which had not featured in the 1970s – namely, with regard to workplaces, an obligation to fulfil the fire-safety related requirements of certain European health and safety at work directives6. These requirements were first specifically met via, inter alia, the creation of the 1997 regulations. These regulations, linked with others and later furthered by amendment, were to culminate in the creation of a régime fashioned to protect the fire safety of (largely) employees. Securing minimum standards in most places where people worked, the system burdened employers and others in control of workplaces not with an obligation to seek a certificate, but with the imposition of fire related duties which they themselves were to fulfil. Obligations were imposed including those to establish the protection of emergency routes and exits, to provide firefighting equipment, detectors and alarms and to take firefighting measures. All such duties fanned out from a pivotal obligation to carry out a fire risk assessment, from which everything else flowed; its findings, the organisation of the consequentially necessary measures, and, if need be, the enforcement of the requirements. As to enforcement furthermore, this was borne by the fire authorities. For some years the régimes of the 1971 Act and the workplace fire safety-related regulations existed side by side, but with their juxtaposed existence and differing characters creating difficulty. Moreover, they comprised the twin, central pillars of a legislative scene harbouring many other pieces of fire law, and so misunderstanding was inevitable. On-going criticism followed, and made for the intensification of calls for reform. In 2005, by way of response, the rationalising order arrived. Sharing with the workplace fire safety regulations a European pedigree, the Order is moulded upon them. But it is far wider in coverage: it is applicable to virtually all workplaces and places to which the public have access, and is designed to protect employees and others on and in the immediate vicinity of premises in issue7. Its central system casts on ‘responsible persons’8 and also on ‘other duty holders’9 duties which they themselves must fulfil. Again, the main duty is to carry out a fire risk assessment, which yet again spawns an array of fire-related duties, such as those relating to the provision of firefighting equipment, detectors and alarms, the taking of firefighting measures, and the facilitation of escape. Enforcement is put mainly in the hands of the fire and rescue authorities10 who are empowered to issue enforcement notices, and there is also provision in the order for the creation of offences and the making of appeals11..
An Insight from History
To put the law so far as is possible into one place, to rationalise, to reduce fragmentation and so to overcome confusion; all these notions inspired those who created the current order. Further, the reformers sought to maintain and increase the European inspired risk-based approach. (The approach taken to the regulated was put on that basis via the imposition of the core duty to carry out the fire risk assessment, while the approach taken to the enforcers was similarly placed inasmuch as they were to deploy risk based inspection programmes12). Study of the order itself reveals the makers’ very thorough pursuit of the desiderata. But I would suggest that study of its history underlines the presence of a yet more profound feature – namely retention, and development of the cultural shift which had been earlier displayed in the workplace fire safety regulations. To expand: if one contemplates the order and its predecessor regulations from the perspective of the 1971 Act, one sees that by far their most dominant feature lies in their ‘self compliant’ approach and, in consequence, their departure from the prescriptive approach of 30-odd preceding years. With this deed done, one may merely say ‘so be it’ – and then add ‘so what?’ No law is in a sense ‘a stand alone’. They all have their inherited ‘luggage’ and the order is no different. Why bother to go to any lengths to spill ink on the matter?
It is necessary for a number of reasons. The departure in question constitutes not just a modest, but a fundamental, shift. Whereas, in the prescriptive approach, direct control over – and primary responsibility for – fire safety, emanated from the authorities, in the self compliance school, that control and responsibility rests with individuals. Furthermore, with the repeal of the 1971 Act, the move is not only tangential, but total. Again one may say, ‘so what?’: there are numerous sound economic and philosophical rationales for the change. However, suppose in the future there should occur a public evaluation of the order13, and suppose further that amongst the issues arising, there should be a doubt as to the level of public confidence in the order’s régime14. In that event, I would suggest that the cultural shift at present under discussion might not escape notice. On the contrary, it might attract perhaps more than mere cursory attention.
There are several reasons for this, including the length of the effectiveness of the prescriptive approach and that under the self compliant approach, the effective involvement of a fire safety professional may arrive only at a time later in the course of a premises’ existence than under the prescriptive approach – and that may be too late.
Conclusion
A historical slant on the current law yields the possibility of a revisiting of the act – a revisiting with a view to seeing whether, among other feasible options, anything of help could be gleaned from its principles. Just the thought raises for consideration a host of conflicting issues – although the task of this paper is no more than the raising of the thought. Maybe this theme will be dismissed as impractical and heretical; even the expression of a view born of nostalgia – although maybe not. Untrammelled by the complexities necessarily attendant upon the new law15, the old law worked16.. Though technically deceased, the act’s enduring legacy is one of directness and of clarity of purpose. Such qualities may one day be needed.
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