Chapter 6 - Mutual assistance etc.

Sections 33 and 34 - Reinforcement schemes and directions about reinforcement schemes

52.     These sections re-enact the provisions of the 1947 Act on reinforcement schemes and extend them to apply to road traffic accidents and other serious emergencies (as set out by additional function order under section 11). Section 33 obliges relevant authorities to group together (so far as practicable) to provide mutual assistance. If there are cases where such authorities are unable to come to an agreement about forming such a group then, at the request of one of the authorities concerned, section 34 gives the Scottish Ministers the power to direct authorities involved to make, vary or revoke such a scheme.

53.     Before giving a direction, the Scottish Ministers must give all authorities concerned the opportunity to make representations to them and may also instruct an inquiry.

Section 35 - Assistance other than from relevant authorities

54.     This section will extend powers in the 1947 Act to allow fire authorities to enter into agreements with organisations including those that employ their own fire-fighters. For example, a relevant authority could arrange with an industrial company for their in-house fire-fighters to provide assistance to the authority outwith the company premises if requested and required. In addition, assistance may be provided by a non fire-fighter if approved by the Chief Officer. For example, a Chief Officer may approve a forestry worker to assist fire-fighters engaged in extinguishing a heathland fire. The cost of this assistance could be reimbursed. These arrangements can also apply to any of the authority's functions covered by sections 8 to 11, 13 and 61.

55.     The arrangements under this section cannot be between two relevant authorities as this type of relationship would be covered by sections 33 and 34.

Sections 36 and 37 - Arrangements for carrying out of functions by others

56.     Section 36 extends powers in the 1947 Act to provide relevant authorities with the ability to enter into contractual arrangements with others (including other relevant authorities) to provide services in the execution of their functions (covered by sections 8 to 11, 13 and 61). An example would be an agreement where a relevant authority contracts with a local authority to promote fire safety within its schools. Another example would be where a relevant authority specialises in rope rescue and a neighbouring relevant authority contracts with it to provide some, or all, of its response to incidents requiring rope rescue.

57.     However, a relevant authority can only delegate its fire-fighting functions to another authority or others that employ fire-fighters.

58.     Section 37 re-enacts provisions in the 1947 Act that provide the Scottish Ministers with the ability to require relevant authorities to enter into contractual arrangements under section 36 (or to vary or cancel any such arrangements). The Scottish Ministers can exercise the power on their own initiative, but the power must be exercised in the interests of economy, efficiency and effectiveness.

59.     Before issuing a direction, the Scottish Ministers must give the relevant authorities concerned the opportunity to make representations to them and they may hold an inquiry.

Chapter 7 - Assaulting or impeding employees and others

Section 38 - Amendment of Emergency Workers (Scotland) Act 2005

60.     This section makes it an offence under the Emergency Workers (Scotland) Act 2005 to assault, obstruct or hinder a person acting in the capacity of an employee of a relevant authority or someone providing assistance to them in carrying out functions under sections 9 to 13 (fire fighting, road traffic accidents, other emergencies, emergency directions and other eventualities) or exercising powers under sections 25 (powers of authorised employees in relation to emergencies), 27 (powers to obtain information) and 29 (powers in relation to investigating fires). The penalty for such an offence under the Emergency Workers (Scotland) Act 2005 is, on summary conviction, imprisonment for a period not exceeding 9 months or a fine not exceeding level 5 on the standard scale or both.

Section 39 - Assaulting or impeding employees discharging certain functions

61.     Section 39 makes it an offence to assault, obstruct or hinder an employee of a relevant authority whilst carrying out their duties under sections 8 (fire safety), 17 (duty to secure water supply) or 61 (enforcing authorities). It also covers persons providing assistance to the relevant authority by virtue of arrangements made for assistance under section 35 and those undertaking a function of the authority by virtue of arrangements made under section 36. The offence is punishable on summary conviction with a period of imprisonment not exceeding 9 months or a fine not exceeding level 4 on the standard scale.

Chapter 8 - Central supervision and support

Section 40 - Framework document

62.     This section requires the Scottish Ministers to prepare and consult on a Fire and Rescue Service National Framework ("the Framework"), keep the Framework under review and consult on any significant revisions made to it. The Framework (and any significant revision) will come into effect by order.

Section 41 - Adherence

63.     This section requires relevant authorities to have regard to the Framework when carrying out their functions. The Scottish Ministers have the power to intervene if they consider an authority is failing to act in accordance with the Framework by requiring an authority, by order, to act in accordance with the Framework. They may also cause an inquiry to be held into the matter. Before making such an order, the Scottish Ministers must consult the authority.

Section 42 - Reporting

64.     This section requires the Scottish Ministers to report to the Parliament on the extent to which relevant authorities are acting in accordance with the Framework and any action Scottish Ministers have taken to ensure the authorities do so.

Sections 43 and 44 - Inspectors of Fire and Rescue Authorities and functions of Inspectors of Fire and Rescue Authorities

65.     Section 43 sets out the arrangements for appointing inspectors of relevant authorities.

66.     Section 44 allows the Scottish Ministers to call for reports from inspectors on the general performance of relevant authorities and on how they are carrying out their functions under the Act. The Scottish Ministers are required to lay a copy of any report submitted on the state and efficiency of relevant authorities generally before Parliament.

Section 45 - Directions for public safety purposes

67.     This section provides the Scottish Ministers with the power to give general or specific directions (a "property and facilities order") to relevant authorities as to the use and disposal of property or facilities for the purposes of public safety. Such a direction may cover all kinds of property and facilities. An example of when this power might be used is during a period of industrial action when official relevant authority cover to deal with emergencies is insufficient to deal with local risks and, in order to ensure public safety, their equipment needs to be used by others providing emergency fire cover.

Section 46 - Requirements concerning equipment and services

68.     This section confers on the Scottish Ministers the power (by order) to oblige relevant authorities to use and maintain equipment and services as specified. An example would be the new Firelink radio system where in order to ensure inter-operability between the emergency services, and to enable relevant authorities to work across their own boundaries in the event of an emergency, it is essential that all authorities use the same radio system.

Section 47 - Provision of equipment etc.

69.     This section allows the Scottish Ministers to provide, contribute to and maintain equipment, facilities, organisations and services which may be used by relevant authorities. This power must be exercised in the interests of economy, efficiency and effectiveness. For example, this section will give the Scottish Ministers the specific authority to provide equipment to deal with civil resilience incidents and standardised systems for radio communications. This will help to ensure consistency of approach in the case of major emergencies such as a terrorist incident.

Section 48 - Central institution and other centres for education and training

70.     This section allows the Scottish Ministers to set up and maintain a central training institution for the purposes set out in subsection (2). Some training which is best suited to local delivery may be undertaken by relevant authorities under powers in section 15 and the Scottish Ministers may make arrangements with relevant authorities for central training (for the purposes set out in subsection (2)) to be delivered at local centres.

Chapter 9 - Employment

Section 49 - Statutory negotiation arrangements

71.     This section provides the Scottish Ministers with power to establish negotiating machinery in respect of the conditions of service under which employees of relevant authorities work. The power allows the Scottish Ministers to determine the number, composition and chair of such a negotiating body or bodies.

72.     Subsection (2) requires that any such body include representatives of employers and employees (which may include trade unions (as defined in section 1 of the Trade Union and Labour Relations (Consolidation) Act 1992)) and an independent chair.

73.      Subsections (5), (6) and (7) would allow the statutory body to make arrangements for some conditions of service to be negotiated locally either in their entirety or within nationally agreed parameters. Subsection (8) makes an agreement between a relevant authority and employees of a particular type a legally enforceable contract; but the agreement is only enforceable where it was made by means of the statutory negotiation body which contained representatives of employees of that type, or if made in accordance with the local negotiation arrangements described in section 49(5) to (7).

Section 50 - Guidance

74.     Any negotiating body, whether established voluntarily or under section 49, is required by this section to have regard to any guidance given by the Scottish Ministers in connection with the negotiation of conditions of service.

Section 51 - Prohibition on employment of police

75.     This section re-enacts section 32 of the 1947 Act and provides that a relevant authority may not employ a police constable as a fire-fighter. If an off-duty constable was employed by a relevant authority, for example as a fire-fighter on the retained duty system and available for response by pager call, difficulties may arise at the scene of a fire or other emergency due to confusion over which employer has the primary claim on the constable's services.

Chapter 10 - Interpretation

Section 52 - Interpretation of Part 2

76.     This section gives meanings to three terms used in Part 2 of the Act - in particular it provides a definition of "emergency", for the purposes of this Part.

PART 3 - FIRE SAFETY

Chapter 1 - Fire safety duties

Section 53 - Duties of employers to employees

77.     Section 53 provides that employers have a general duty to ensure so far as is reasonably practicable the safety of their employees in respect of harm caused by fire in the workplace. The formulation of this duty is very similar to that in section 2 of the Health and Safety at Work etc. Act 1974 (c.37) ("the 1974 Act"). In that context the words "so far as is reasonably practicable" have been considered by the Court of Appeal in Edwards v NCB [1949] 1 All ER 743, where the court held that it is a narrower term than "physically possible" and implies that a computation must be made in which the quantum of risk is placed in one scale and the sacrifice, whether in money, time or trouble, involved in the measures necessary to avert the risk is placed in the other. If it can be shown that there is a gross disproportion between them, the risk being insufficient in relation to the sacrifice, the person on whom the burden is placed discharges the burden of proving that compliance was not reasonably practicable. This interpretation has been consistently applied by the courts in subsequent decisions.

78.     Subsection (2) sets out specific duties of employers in relation to carrying out a risk assessment to identify fire safety risks, and taking the necessary fire safety measures to ensure that they comply with their general duty under 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, where persons who have control of premises to a certain extent, have a duty to the same extent. This reflects the high standard which is expected of employers in domestic and European legislation.

79.     Fire safety measures are defined in schedule 2. Paragraph 2 of schedule 2 makes it clear that these measures do not include process fire precautions which are a reserved matter under Section H2 of Schedule 5 to the Scotland Act 1998. The term "process fire precautions" is not defined anywhere 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 precautions" which relate 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.

80.     Subsection (3) imposes a duty on the employer to review the risk assessment in accordance with regulations under section 57 and to take the necessary fire safety measures to ensure compliance with the general duty under subsection (1).

Section 54 - Duties in relation to relevant premises

81.     Section 54 provides that a person who has control of premises must carry out a risk assessment to identify fire safety risks to relevant persons in respect of harm caused by fire on the relevant premises. There is a definition of "relevant premises" in section 78. The person in control of the relevant premises would include the employer (where there is one), a person in control of the premises in connection with the carrying on of a trade, business or other undertaking, and the owner. For example, a shopkeeper who is a sole trader with no employees carrying out a business in leased premises would have duties under section 54 on the basis that the shopkeeper has control of the premises to an extent. In this example, the owner of the premises may also have section 54 duties. Other people, such as landlords or contractors who take responsibility for installation and maintenance of fire precautions or fire safety measures may be in a position to exercise varying degrees of control over premises and they may bear a relevant degree of responsibility under section 54.

82.     The term "relevant person" is defined in section 79 and means persons who are or may be lawfully on 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 fire and rescue authorities and joint boards are excluded from the definition when they are carrying out operational tasks (also defined in section 79). Where the person subject to the duty in section 54 is an employer their employees are excluded because they are already protected by the section 53 employer/employee duty. Following the risk assessment the obligation is to take such fire safety measures as would be 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, bearing in mind all the circumstances. Where the person in control of the premises is not the owner or a person carrying on an undertaking then the owner is also subject to the subsection (2) duties.

83.     Subsection (4) imposes the subsection (2) duties on persons who have obligations under contracts or tenancies in relation to maintenance or repair or in relation to fire safety. The subsection (2) duty is imposed but only to the extent that those persons have such obligations. This would include for example contractors who take responsibility for installation and maintenance in relation to fire alarms.

84.     Subsection (5) imposes an obligation on the persons subject to the subsection (2)(a) duty to review their risk assessment in line with the regulations made under section 57 and to take measures to ensure safety in line with their subsection (2)(b) duty.

Section 55 - Taking of measures under section 53 or 54: considerations

85.      Section 55 details the considerations which a person taking fire safety measures under section 53 or 54 must take into account. The measures set out in the section correspond with those set out in article 6(2) of the Framework Directive.

Section 56 - Duties of employees

86.     This section places a duty on employees while "at work" to take, in respect of fire safety, reasonable care of themselves and any other relevant person who may be affected by their acts or omissions. Employees must also co-operate with their employers so far as is necessary to enable the employers to meet their obligations and duties under Part 3 of the Act.

Sections 57 and 58 - Risk assessments: power to make regulations and Scottish Ministers' power to make regulations about fire safety

87.     These sections provide the Scottish Ministers with the necessary powers to make regulations in connection with the carrying out of risk assessments, including their review, and to make regulations in connection with fire safety in premises to which Part 3 applies.

88.     It is intended that regulations will cover - among other things - duties to record fire safety arrangements in particular circumstances; duties not to employ certain types of employee before assessments are made which take into account factors relevant to, for example, young employees; the need to equip premises with fire-fighting equipment and fire detection equipment; requirements to provide safe routes to emergency exits; the standards required of such emergency exits; the need to establish appropriate safety procedures and the provision of information in connection with risks and fire safety measures in particular premises.

Section 59 - Power to make further provision for protection of fire-fighters

89.     This provision enables Scottish Ministers to apply provisions in regulations concerning maintenance requirements in respect of measures provided for the protection of fire-fighters (e.g. rising mains), to the common areas of private dwellings.

Section 60 - Special case: temporary suspension of Chapter 1 duties

90.     This section provides that in circumstances where the carrying out of the duties imposed by sections 53 to 56 and regulations under sections 57 and 58 (defined in section 79 as the "Chapter 1 duties") would prevent a member of the armed forces of the Crown, a visiting force, a police constable or any other person of a description prescribed in regulations from carrying out their operational duties (as defined in subsection (4)), the Chapter 1 duties are temporarily suspended during that period. Subsection (3) provides that in these circumstances a person whose duties are temporarily suspended must still ensure so far as is possible the safety of relevant persons in respect of harm caused by fire.

Chapter 2 - Enforcement

Section 61 - Enforcing authorities

91.     This section imposes an obligation on enforcing authorities to enforce the Chapter 1 duties. In most cases the enforcing authorities will be the fire and rescue authority or the joint fire and rescue board. However it is recognised that there are some special areas where it is more appropriate for another authority to enforce fire safety matters. The other enforcing authorities are: the local authority for major sports grounds; and the Chief Inspector of Fire and Rescue Authorities for Scotland (the "Chief Inspector") for Crown owned or occupied premises generally and for the United Kingdom Atomic Energy Authority premises. Subsections (7) and (8) enable relevant authorities to make arrangements with other persons in respect of the carrying out of their functions under Part 3 in relation to particular workplaces

92.     Subsection (2) requires enforcing authorities to have regard to any guidance issued by the Scottish Ministers when carrying out their duties. Subsection (3) gives enforcing authorities the power to appoint "enforcement officers". The Chief Inspector can appoint as an enforcement officer a person who has been appointed as an enforcement officer by a relevant authority, as long as the relevant authority consents and the appointment is made in writing.

Section 62 - Powers of enforcement officers

93.     Section 62 sets out the powers of enforcement officers in relation to the carrying out of the enforcing authorities' duties. Subsection (3) provides that enforcement officers exercising powers of entry must produce evidence of their authority to exercise these powers, if required to do so.

94.     These powers include a power of entry and powers to take possession of, or samples of, articles found in the premises. Subsection (2)(c) requires persons on the premises to provide the enforcement officer with information, documents or other assistance that the officer reasonably requests. Subsection (6) requires the enforcement officer to undertake any activities mentioned in subsection (2)(d), (e) or (g) in the presence of any person with Chapter 1 duties in relation to the relevant premises, if requested. Subsection (4) obliges an enforcement officer exercising the power under subsection (2)(f) to take samples to leave a notice at the premises. Similarly, subsection (7) requires an enforcement officer exercising the power under subsection (2)(h) to take possession of articles to leave a notice at the relevant premises indicating what has been removed and by whom.

95.     Subsection (8) requires enforcement officers, in circumstances where they have exercised their powers of entry, to leave the premises as secure as they found them.

Section 63 - Prohibition notices

96.     Where an enforcing authority considers that the use of relevant premises involves or will involve a risk to relevant persons so serious that their use ought to be prohibited or restricted, an enforcing authority may prohibit or restrict their use until such time as the matters giving rise to the risk have been remedied. This is done by the issuing of a prohibition notice. The process is similar to provisions that appear in section 10 of the Fire Precautions Act 1971 (c.40). Under section 66 there is an appeal against the service of a prohibition notice to the sheriff court. The sheriff can make an order suspending the operation of the prohibition notice pending the determination of the appeal. Subsection (8) provides for the withdrawal in writing of a prohibition notice by the enforcing authority.

Section 64 - Enforcement notices

97.     This section provides for the issue of an enforcement notice by the enforcing authority in cases where the enforcing authority considers that there is non-compliance with the Chapter 1 duties (except the employee's duty of co-operation in section 56). The provisions are similar to equivalent provisions in section 20 of the 1974 Act and provisions that appeared in the Fire Precautions (Workplace) Regulations 1997 (S.I. 1997/1840). An enforcement notice sets out what duty has not been complied with, the reason why it is considered that the duty has not been complied with and what action should be taken within a specified time frame to remedy the position.

98.     Where an enforcement notice requires the making of alterations to relevant premises, the enforcing authority must consult other bodies that have enforcement or approval responsibilities in respect of the premises prior to the issue of the notice to ensure that the measures required are appropriate in the light of other restrictions that may apply to the premises. Failure to comply with the consultation requirement does not affect the validity of the notice. Subsection (8) provides for the withdrawal in writing of an enforcement notice by the enforcing authority. Under section 66 it is possible to appeal against the service of an enforcement notice in the sheriff court. The bringing of the appeal has the effect of suspending the notice whilst the appeal is ongoing.

Section 65 - Alterations notices

99.     Where relevant premises pose a serious risk to relevant persons, or it is likely that they would pose a serious risk to relevant persons in respect of harm caused by fire if changes were made to the premises, the enforcing authority can issue an alterations notice. The effect of the notice is to require the "appropriate person" (that is, the person subject to requirements in respect of the premises in terms of section 53 or 54) to notify the enforcing authority of their intentions prior to making any specified changes. The alterations notice advises recipients that where they intend to make changes of a type falling within subsection (5), and where the change or changes would constitute a serious risk to relevant persons in respect of harm caused by fire, they must notify the enforcing authority of the changes they intend to make. This enables the enforcing authority to be alerted to any potential problems and allows an intervention before changes are made which significantly increase the risk.

100.     The issue of an alterations notice does not preclude the appropriate person from undertaking the changes proposed. However, it requires them to notify the enforcing authority in advance of the change or changes being made. Subsection (7) provides for the withdrawal in writing of an alterations notice by the enforcing authority.

Section 66 - Appeals

101.     The rights of individuals are protected in relation to the service of prohibition notices, enforcement notices and alterations notices by rights of appeal. An application to the sheriff must be made before the expiry of 21 days beginning with the service of the notice.

Section 67 - Determination of disputes

102.     This section provides a right to seek a determination where the enforcing authority considers that there has been a failure to comply with the Chapter 1 duties but there is a difference of opinion on the action that requires to be taken to rectify this. The person considered to have failed to comply with the Chapter 1 duties and the enforcing authority must jointly agree to seek such a determination. The matter will be referred to the Chief Inspector unless the enforcing authority is the Chief Inspector (in which case the matter will be referred to Scottish Ministers). The determination might avoid the need to go before the courts on appeal against an enforcement notice when the matter to be considered is purely technical- for example where the disagreement concerns the standard of fire alarm which is appropriate in the circumstances of the case.

103.     Where a determination has been made, an enforcing authority may not issue an enforcement notice which conflicts with the determination. However, this provision will not apply in circumstances where a change has been made in relation to the premises or their use which significantly increases the risk posed to relevant persons.