Chapter 3 - Miscellaneous

104.     This chapter deals with a number of miscellaneous issues.

Section 68 - Prohibition on charging employees

105.     Section 68 prohibits the charging of employees in respect of anything employers may do in pursuance of their Chapter 1 duties. This implements article 6(5) of the Framework Directive.

Section 69 - Civil liability for breach of statutory duty

106.     Section 69 prevents civil proceedings being pursued in respect of failures to comply with the Chapter 1 duties. The exclusion does not, however, apply in relation to a breach of Chapter 1 duties by an employer that causes damage to an employee. This implements Article 4 of the Framework Directive which requires an effective legal remedy to be available to employees for breach by their employers of the obligations imposed by the Directive.

Section 70 - Consequential restriction of application of Part I of the Health and Safety at Work etc. Act 1974

107.     Section 70 ensures that Part I of the 1974 Act, and regulations or orders made under that Part, do not apply in relation to devolved fire safety matters except where the enforcing authority is also an enforcing authority under Part I of the 1974 Act. At present, the 1974 Act and the regulations or orders made under it are capable of making provision for certain matters of general fire safety that are dealt with in the Act. It is therefore appropriate to disapply the 1974 Act in the context of creating a new devolved fire safety code.

Section 71 - Suspension of terms and conditions of licences dealing with same matters as this Part

108.     This section ensures that fire safety matters are dealt with under Part 3 (and related regulations) and not in licensing, certification or registration provisions in other enactments.

Chapter 4 - Offences

Sections 72 and 73 - Offences and offences by bodies corporate and partnerships

109.     These sections set out the offences and associated penalties in respect of the provisions contained in Part 3. The most serious offences under Part 3 are subject to a maximum penalty on summary conviction of a fine not exceeding £20,000 or on conviction on indictment to imprisonment not exceeding 2 years or to a fine, or to both. In other cases on summary conviction the statutory maximum applies (currently £5,000) and on conviction on indictment the penalty is a fine. Other less serious offences are subject to lesser maximum penalties. The offences of failing to comply with the duties under sections 53 to 56 and any requirement or prohibition under regulations apply only where the failure puts a relevant person at risk of death, or serious injury, in respect of harm caused by fire. The offence would therefore only be committed where serious consequences might result.

110.     More minor contraventions might be dealt with either through informal advice or through the service of an enforcement notice (failure to comply with such a notice being an offence under section 72(4)(f)(i)). In relation to the offence under subsection (1) in respect of a failure to comply with the duty in section 53 (duty to ensure fire safety of employees so far as is reasonably practicable), subsection (11) provides that the onus of showing that it was not reasonably practicable to do more than was done is on the accused. This is similar to the provision on the burden of proof in section 40 of the 1974 Act (relating to the employer's duty in section 2 of the 1974 Act to ensure the safety of employees at work so far as is reasonably practicable). The reverse legal burden of proof set out in section 40 of the 1974 Act was considered by the Court of Appeal in R v Davies (David Janway) [2002] EWCA Crim 2949 and found to be compatible with the European Convention on Human Rights since it was justified, necessary and proportionate.

111.     Subsection (9) provides for a defence of due diligence but subsection (10) disapplies the due diligence defence in relation to the employer's duties under section 53 and in relation to duties contained in regulations made under sections 57 or 58 concerning the duty to do something so far as is reasonably practicable. Again, the exclusion of the employer from this defence reflects the high standards required of employers under the relevant European legislation.

112.     Subsections (12) and (13) create an automatic reverse burden of proof (i.e. the onus is on the accused) whenever the regulations under section 57 or 58 impose a "so far as is practicable" or "so far as is reasonably practicable" duty or requirement, the breach of which results in an offence under section 72(3).

Section 74 - Offence due to fault of other person

113.     This section enables the prosecution under Part 3 of a third party whose act or default has resulted in an offence being committed under Part 3 by a person with fire safety duties under that Part. This is a similar provision to that which appears in section 24 of the Fire Precautions Act 1971.

Section 75 - Employee's act or omission not to afford employer defence

114.     This section ensures that the acts or omissions of employees, or other persons specified in regulations, will not afford the employer a defence in relation to proceedings for any offence.

Chapter 5 - General

Section 76 - Service of documents

115.     This section sets out the methods by which documents issued under Part 3 may be served and subsection (6) further provides that the Scottish Ministers may make regulations as to the procedures to be followed in relation to the service of documents.

Section 77 - Crown application

116.     This section provides that Part 3 and any regulations made under it shall bind the Crown. Subsection (2) ensures that instead of making the Crown criminally liable for any contravention, the Court of Session may declare unlawful any act or omission of the Crown which constitutes a contravention. The powers of entry conferred in Part 3 cannot be exercised in relation to Crown premises.

Section 78 - Meaning of "relevant premises"

117.     This defines the meaning of relevant premises for the purposes of Part 3: most non-domestic premises used or operated by employers, the self-employed and the voluntary sector. It also applies under subsection (5) to houses licensed under the Civic Government (Scotland) Act 1982 (Licensing of Houses in Multiple Occupation) Order 2000 (S.S.I. 2000/177) (as amended), such as hostels. Other types of premises to which Part 3 applies are listed in subsection (5). These include premises used for the provision of a care home service, those used for the provision of a school care accommodation service, and those used for the provision of an independent health care service.

118.     Types of premises which are not affected by Part 3 are certain means of transport, boreholes and fields, woods and agricultural land. There are special considerations associated with these areas and consequently separate safety regimes shall continue for the areas.

119.     In addition, ships and hovercraft, mines and offshore installations are excluded from the definition. Fire safety on these premises is a reserved matter by virtue of Section H2 of Schedule 5 to the Scotland Act 1998 (as amended). Various defence premises are also excluded from the definition of "relevant premises" under subsections (2)(e) to (g) in consequence of the reservation of defence in paragraph 9 of Part I of Schedule 5 to the Scotland Act 1998, since fire safety on defence premises is regarded as being directly linked to the defence reservation and is regarded as having a direct impact on defence functions.

120.     Under subsections (8) and (9), Scottish Ministers have power by regulations to modify the definition of "relevant premises" to which Part 3 applies, and to modify the application of Part 3 to relevant premises when the subsection (8) power is exercised.

PART 4 - MISCELLANEOUS

Sections 80 and 81 - Inquiries and inquiries: supplementary

121.     These sections re-enact with amendments section 33 of the 1947 Act. The Scottish Ministers will be able to hold a public inquiry into the performance of a relevant authority or its handling of a particular incident. Section 81 provides that the Scottish Ministers may make regulations about inquiries under the Act (other than inquiries under section 44).

Section 82 - Pre-commencement consultation

122.     Section 82 sets out that where consultation is required under a provision in the Act and before that provision comes into force consultation takes place, any such consultation will count as consultation required by and to the extent set out under that provision. In effect this will allow consultation prior to Royal Assent to be treated as consultation under the relevant provision. An example where this may be the case is preparation of the Framework Document.

Section 83 - Payments in respect of advisory bodies

123.     Section 83 gives the Scottish Ministers powers to pay the expenses of any body established for the purpose of offering them advice on matters in relation to which provision is made under the Act.

Section 84 - Abolition of Scottish Central Fire Brigades Advisory Council

124.     Section 84 abolishes the Scottish Central Fire Brigades Advisory Council which was established for Scotland under section 36(18) of the 1947 Act to provide general advice to the Scottish Ministers on matters relating to the operation of that Act. The Council also served as statutory consultee prior to the exercise by the Scottish Ministers of certain of their regulation making powers under the 1947 Act. Where such regulation making powers are re-enacted elsewhere in the Act the Scottish Ministers will consult any such persons as they consider appropriate.

Section 85 - False alarms

125.     Section 85 supersedes section 31 of the 1947 Act. It provides that a person who knowingly gives or causes someone else to give a false alarm of fire, road traffic accident or emergency of another kind to a person acting on behalf of a relevant authority is liable to a maximum of a level 5 fine, a prison sentence not exceeding 3 months or both.

Section 86 - Disposal of land

126.     This section provides relevant authorities with powers to sell or dispose of land which they no longer require. It makes provision similar to section 36(20) of the 1947 Act.

PARLIAMENTARY HISTORY

127.     The following table sets out, for each Stage of the proceedings in the Scottish Parliament on the Bill for this Act, the dates on which the proceedings at that Stage took place, the references to the Official Report of those proceedings, the dates on which Committee Reports were published and the references to those Reports.