Sixth Standing Committeeon Delegated Legislation
Thursday 4 November 1999
[Mr. Roger Gale in the Chair]
Fire Precautions (Workplace) (Amendment) Regulations 1999
10 am
The Chairman: Hon. Members may remove their jackets if they wish.
Mr. David Lidington (Aylesbury): I beg to move,
That the Committee has considered the Fire Precautions (Workplace) (Amendment) Regulations 1999 (S.I., 1999, No. 1877).
I start, Mr. Gale, by welcoming you to the Chair. I am sure that your impartial rod of iron will ensure fair debate this morning. I wish also to express my appreciation that it has been possible, through the usual channels, to arrange a debate on the regulations. They are a matter of complicated detail that will affect a large number of employers, and it would have been wrong to allow them to go through Parliament without open discussion.
I want to concentrate on four aspects of the regulations and I shall ask the Minister to explain the Government's position in greater detail. I hope that he will provide reassurance. First, is there a legal necessity for the regulations, and are they needed for us to comply with the relevant EC directives? Secondly, will the Minister say something about the legislative overlap between the regulations and certification procedures under the Fire Precautions Act 1971? Thirdly, can he allay my anxiety about the additional burdens that the regulations may place on British businesses and our fire services? Fourthly, will the Minister say how the regulations fit into the Government's declared strategy for a comprehensive overhaul and consolidation of fire safety legislation?
As I understand the text of the regulations, the prime purpose of the change is to end a series of exemptions that were embodied in the Fire Precautions (Workplace) Regulations 1997. Until the amending regulations were made, various categories of employers were exempt from the regulations and the duties that the regulations placed upon employers. The most significant category, at least numerically, was workplaces where a fire certificate was in force or was being sought under the provisions of the 1971 Act. Various other categories were exempt, including sports grounds and stands where a safety certificate was in force, subsurface railway stations, ships being built or repaired, buildings at the surface of mines, and workplaces that were subject to the Fire Certificates (Special Premises) Regulations 1976.
I want to focus on the largest category of employers affected by the regulations—shops, offices and factories that are already covered by certification arrangements under the 1971 Act. The Home Office estimate is that about 137,000 workplaces that were not previously subject to the regulations will be brought within their ambit. The Government's justification for ending the exemptions that were embodied in regulations as recently as 1997 is that it is necessary in order to comply with European law and to avoid the risk of infraction proceedings.
In a written answer of 8 April 1998, at column 255 of the Official Report, the Minister's predecessor, the hon. Member for Knowsley, North and Sefton, East (Mr. Howarth) said that, following representations from the then Commissioner Flynn, the Government had decided to take further action. I regret that the Government have not released the text of the Commissioner's letter, which apparently threatened infraction proceedings. I realise that successive Governments have followed a policy of not releasing into the public domain correspondence from the Commission, but the Minister may want to reconsider that policy in the context of forthcoming freedom of information legislation.
I have read the directives on which Commissioner Flynn's representations seem to have been based. As I understand it, the Commission is saying that the text of our law prior to these amendming regulations fails to comply with the duties imposed on employers in general by the directives. Is that so, or could a strong argument be made for saying that it is possible to comply with the directives without this further imposition of a regulatory burden on employers?
Article 1 of the framework directive of 12 June 1989 states:
"This Directive shall be without prejudice to existing or future national and Community provisions which are more favourable to protection of the safety and health of workers at work."
That suggests that it might be argued that, if our certification arrangements under the 1971 Act are held to provide a superior form of protection to that required under the regulations, the certification procedures alone should be sufficient for the United Kingdom to say that it is complying adequately with the directives.
Similarly, article 5(2) of the directive places duties on employers who enlist external services or persons to help them discharge their health and safety responsibilities. Is certification in breach of that if an employer acts, following advice from the fire authority, to introduce certain measures required to secure a fire certificate? Would that not constitute discharging his duty as an employer under the terms of the directives?
I assume that, in 1997, when the Government introduced their original fire precautions regulations, including the various exemptions that they are now removing, Ministers took legal advice on whether those regulations complied with the relevant European Community directives. Has the Government's legal advice changed in the interim? They considered the matter as recently as 1997, and thought then that it was possible to justify exemptions within the terms of the directives. What has changed, in terms of the Government's legal advice, that justifies their introducing these new burdens now? Are the Government in assessing the risk to themselves simply nervous about incurring the costs and the risk involved in a case being presented to the European Court of Justice? Does the Department see the regulations as a quicker and, from the Government's point of view, cheaper way out of their dilemma?
What is the position with regard to other member states of the European Union? I understand that a 1993 study of the implementation of European legislation showed that other member states were not complying with European legal requirements on health and safety. Are other countries still failing to implement or enforce the standards required under European directives? Is the Commission taking, or threatening to take, infraction proceedings against those countries?
Most employers in Britain would argue that the combination of our health and safety legislation, fire precautions regulations and fire certification procedures provides an objectively high standard of protection for employees against the risk of fire at the workplace. British employers would reasonably question whether every other member state of the EU meets our existing standards, let alone the higher ones being imposed under the amending regulations. Does a level playing field exist across the EU?
On the question of legislative overlap, many employers are required to obtain fire certificates under the 1971 Act, in addition to which they will have to undertake the formal assessment procedure required under the fire regulations. Under the 1971 Act, an employer who is in the category designated by order must apply to his fire authority for a fire certificate. He must provide the fire authority with detailed information, including detailed plans of his premises. A fire authority inspection usually takes place. The fire authority can insist that new equipment or doors are installed, or that staff undergo new training procedures and so on. Finally, when the conditions have been complied with, a certificate is granted.
It seems that many employers will have to comply with two distinct, but overlapping, fire safety procedures. Inevitably, that will be burdensome in terms of their time and, therefore, costs. I accept that the Government have drafted the regulations so that employers can avoid the risk of criminal sanctions if the fire certificate and the fire regulations are contradictory. However, I should like the Minister to answer some questions.
First, can an employer use the assessment procedures, which he will be obliged to follow under the regulations, to qualify for a certificate, or can the work that he must undertake in preparing to qualify for a certificate count as evidence of due diligence towards completing the formal assessment procedure? Can those two different duties of compliance be merged so that the employer does not have formally to conduct what will often be the same tasks twice to meet those different legal obligations?
Secondly, will the Minister explain why the Government have apparently decided not to amend the Fire Precautions (Factories, Offices, Shops and Railway Premises) Order 1989, given that doing so was mooted by the Government in their consultation document as a possible means to reduce the legislative overlap? In its response to the consultation document, the Federation of Small Businesses suggests a general exemption for low to medium risk premises, subject to a fire certificate, if companies have fewer than 50 employees. The Chief and Assistant Chief Fire Officers Association argues that fire authorities should be given complete discretion to exempt categories of companies from the certification requirements under the order.
Given the legislative overlap and, therefore, the discretion that fire authorities are likely to have, I hope that the Minister agrees that the Home Office needs to issue some guidance to fire authorities, so that a common approach exists around the country and that individual employers—especially those with different premises in different fire authority areas—know where they stand and know that common standards apply.
The Government's estimate of potential new burdens on employers and fire authorities is modest and imprecise: the compliance cost assessment lists new costs of between £2.3 million and £28.22 million. The Confederation of British Industry and the Federation of Small Businesses both believe that that is a large underestimate of the actual costs that employers might incur.
According to the compliance cost assessment, the Government believe that most certificated premises will already have the necessary fire-fighting equipment, so there will be little if any capital cost involved to comply with the new regulations. However, the Federation of Small Businesses argues that premises certified between 1977 and 1985 will not meet current standards for fire-resisting doors, and that many factories, offices and shops will have to install additional emergency lighting because of the regulations, even though that is not currently required as a condition of their fire certificates.
The duties imposed on employers under the regulations are formal and might be burdensome. As I understand the subject, employers are required to make formal assessments of fire risk, of whether anyone will be hurt if fire occurs and of whether safety arrangements are Satisfactory or action needs taking. If employers have more than five employees, they must keep written records of the significant findings of fire risk assessments and the measures proposed to deal with those findings.
A checklist in the Home Office's recently published document "Fire Safety: An employer's guide" recommends that employers ask themselves 33 detailed questions and lists numerous other measures for employers to consider during their assessment. For example, employers are required to prepare an emergency plan and to provide training for employees. In practice, most employers will want to check with their fire authority that the assessment and certification procedures are not in conflict as regards their company. To prove due diligence, they will also feel the need to record formally details of equipment testing and of the periods of staff instruction and training that they have provided.
That will add up to a burden considerably more time consuming and costly than the Government predict in their compliance cost assessment. For example, they assume that an employer will conduct risk assessment in one and a half hours, that a staff training period will take no more than 20 minutes and that assessment and training costs will largely be absorbed in the employer's existing health and safety work. So far as I can tell, the Government's calculation makes no allowance for the preparation of the emergency plan. That strikes me as an unrealistically low estimate of the burden on employers.
I also challenge the Government's estimate of the individual costs of operations involved in the assessment procedure. For example, the Government say that to employ a consultant to perform a risk assessment would cost the average employer £616. In 1996, however, the British Retail Consortium estimated that it would cost an employer £1,000. Similarly, the Government believe that it would take one and half hours at £11 an hour—a total of £16.50—for employers to perform their own risk assessments in house. Three years ago, the British Retail Consortium estimated the cost of self-assessment at £10 an hour—roughly in line with the Government's current estimate of the hourly cost—but the time taken, as four or eight hours, depending on the complexity of the premises and the number of sites where an in-house assessment is to be carried out, giving a cost of between £40 and £80, rather than the Government's estimate of £16.50.
I hope that the Minister can provide assurance that the Government have looked closely at the question of additional costs to business and that they take seriously the concerns that have been expressed by the representative organisations of small and large businesses alike. I hope, too, that they have given thought to the costs for the fire service. It is likely that more employers, following the regulations, will seek advice and assistance from fire authorities, and CACFOA believes that the more employers understand the legal requirement for them to undertake a formal risk assessment procedure, the more they will ask for fire authority help, which will in turn present fire authorities with difficult decisions in regard to priorities and expenditure, at a time when many are finding their budgets already stretched.
Finally, I press the Minister to say where the regulations fit into the Government's overall strategy and their promise that we will eventually see a comprehensive overhaul and consolidation of fire safety legislation. Everybody the different political parties and the fire service alike, recognises the need for such an overhaul. I have seen a letter from the Devon Fire and Rescue Service which lists 85 Acts of Parliament and sets of regulations which deal with fire safety and fire precautions matters. The legislation covering this area is very fragmented and it is difficult for employers and the fire service to come to a coherent view of where the law stands and what duties have to be carried out to comply with the law.
The Government have promised us a revised consolidated fire safety Bill, so why do they now need to push forward with this piecemeal amendment to the 1997 legislation? Have the Government put the proposal for a consolidated fire safety Bill on the legislative back burner? Do they think it more important to find time for other items of legislation during the forthcoming parliamentary Session and will we see fire safety relegated to a low priority? The overhaul of fire safety law is wanted by the fire service, fire authorities and business.
In its response to the Government's consultation document, the Confederation of British Industry said bluntly:
"the CBI find that the repeated small revisions to the legislation are unacceptable."
The CBI wants a shift towards a system whereby fire safety legislation is based on the notion of risk assessment, but believes:
"This can only be achieved by a fundamental change of primary legislation which has been fully consulted on. The risks of rolling back the old system without properly rolling out the new are considerable and pose risks not only for the business and the public but also for the Home Office and the fire authority if an incident occurs."
The demand for that shift towards new, all-embracing, fire safety legislation is widespread. It is a pity that instead of introducing such a Bill, or at the least a White Paper to point the way forward, the Government feel obliged to come forward with this piecemeal amendment. It suggests that we cannot expect a general fire safety Bill for another 12 months at the very least.
I hope that when the Minister replies, he will not only answer my detailed points, but can say that the comprehensive revision of our safety legislation will remain at the forefront of the Home Office's concerns.
10.24 am
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