2005 Chapter 5

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These notes refer to the Fire (Scotland) Act 2005 (asp 5) which received Royal Assent on 1st April 2005

FIRE (SCOTLAND) ACT 2005

EXPLANATORY NOTES

INTRODUCTION

1.     These Explanatory Notes have been prepared by the Scottish Executive in order to assist the reader of the Act. They do not form part of the Act and have not been endorsed by the Parliament.

2.     The Notes should be read in conjunction with the Act but they are not, and are not meant to be, a comprehensive description of the Act. So where a section or schedule, or a part of a section or schedule, does not seem to require any explanation or comment, none is given.

BACKGROUND

3.     The main purpose of this Act is to deliver modernised fire and rescue services that respond to the particular demands of the 21^st century and contribute to building a safer Scotland.

4.     The Act repeals and re-enacts many of the provisions of the Fire Services Act 1947 (c.41) ("the 1947 Act") as they currently apply in Scotland.

5.     It gives effect to the majority of proposals that require primary legislation outlined in the consultation paper The Scottish Fire and Rescue Service: Proposals for Legislation, published in October 2003.

6.     These proposals included the reform of fire safety legislation in Scotland, which is also addressed in the Act.

7.     The consultation paper mentioned above built on the issues raised in, and the responses received to, the policy paper The Scottish Fire Service of the Future which was published in April 2002. The paper also took account of the report of the Independent Review of the Fire Service - The Future of the Fire Service: reducing risk, saving lives which was published in December 2002.

THE ACT - AN OVERVIEW

8.     The Act covers various aspects of the fire and rescue services and is in 5 Parts:

(a)     Part 1 - Fire and Rescue Authorities: this Part determines the bodies which are the fire and rescue authorities (section 1); provides schemes for the creation, variation and revocation of joint fire and rescue boards and supplementary provision (sections 2, 3, 4 and 5) and provides a meaning of "relevant authority" (section 6).

(b)     Part 2 - Fire and Rescue Services (10 Chapters): sets out the requirement for a Chief Officer to be appointed (section 7); sets out the principal functions of relevant authorities (sections 8 to 11); sets out ancillary functions (sections 12 to 16); determines responsibilities for the supply of water for use by relevant authorities (sections 17 to 24); sets out the powers of employees of relevant (c)     authorities and constables (sections 25 to 32); provides for reinforcement schemes (sections 33 and 34); provides for assistance other than from relevant authorities (section 35); enables arrangements to be made for the carrying out of functions by others (sections 36 and 37); provides for the amendment of the Emergency Workers (Scotland) Act 2005 (section 38); provides for offences in connection with the assault or impediment of employees discharging certain functions (section 39); provides for the preparation of a fire and rescue framework for Scotland (sections 40 to 42); provides for the appointment of Inspectors of Fire and Rescue Authorities to inquire into the operation of relevant authorities (sections 43 and 44); provides for the supervision and support of fire and rescue authorities (sections 45 to 48); deals with arrangements for negotiating the conditions of service of those employed by relevant authorities (sections 49 and 50); prohibits the employment of police (section 51) and provides an interpretation of certain terms used in Part 2 (section 52).

(d)     Part 3 - Fire Safety (5 Chapters): this Part consolidates and rationalises much of the existing fire safety legislation in respect of the duties of employers to their employees and in relation to premises (sections 53 and 54); sets out considerations about the taking of fire safety measures (section 55); the general duties of employees (section 56); sets out a power for the Scottish Ministers to make regulations in relation to risk assessments, fire safety and securing the safety of fire-fighters (sections 57 to 59); suspends fire safety duties in certain limited circumstances (section 60); determines the enforcing authorities and sets out the duties of the enforcing authorities (section 61); sets out the powers of enforcement officers (section 62); details the notice, appeals and dispute determination procedures (sections 63 to 67); establishes a duty not to charge employees for anything done or provided by an employer in pursuance of his duties in relation to fire safety (section 68) and sets out provisions in relation to civil liability for breach of statutory duty (section 69); disapplies, generally, Part I of the Health and Safety at Work etc. Act 1974 in respect of certain fire safety matters, while preserving its operation where an enforcing authority under that Part is also an enforcing authority under Part 3 of the Act (section 70); suspends the terms and conditions of licences dealing with matters under Part 3 (section 71); creates offences related to Part 3 (sections 72 and 73); makes provision where the commission of an offence is due to the fault of another person (section 74); makes provision excluding defences available to an employer (section 75); provides for service of documents (section 76); sets out Crown application (section 77); and addresses the interpretation of terms used in Part 3 (sections 78 and 79).

Part 3 is intended to continue the implementation, and provide for implementation by subordinate legislation, of the provisions of 6 EU Directives on health and safety at work:

• Council Directive 89/391/EEC on the introduction of measures to encourage improvements in the safety and health of workers at work ("the Framework Directive");

• Council Directive 91/383/EEC supplementing the measures to encourage improvements in the safety and health at work of workers with a fixed-duration employment relationship or a temporary employment relationship;

• Article 6 of, together with paragraphs 4 and 5 of the annexes to, Council Directive 89/654/EEC concerning the minimum safety and health requirements for the workplace;

• Articles 6 and 7 of Council Directive 94/33/EC on the protection of young people at work;

• Council Directive 98/24/EC on the protection of the health and safety of workers from the risks related to chemical agents at work; and

• Council Directive 99/92/EC on minimum requirements for improving the safety and health protection of workers potentially at risk from explosive atmospheres,

in so far as these provisions relate to matters within devolved competence, general fire safety measures to be taken by employers and in so far as more specific legislation does not make appropriate provision.

(e)     Part 4 - Miscellaneous: details the provisions in relation to inquiries (sections 80 and 81); addresses the issue of pre-commencement consultation (section 82); enables payments in respect of advisory bodies (section 83); provides for the abolition of the Scottish Central Fire Brigades Advisory Council (section 84); sets out the offence that may be committed in relation to false alarms (section 85); and sets out the power of relevant authorities to sell or dispose of land (section 86).

(f)     Part 5 - General: this Part covers general provisions such as the making of orders and regulations and minor and consequential amendments and repeals. In particular it provides powers for the Scottish Ministers to make ancillary provision (section 87); makes provision in relation to orders and regulations (section 88); introduces schedules 3 and 4 which deal with minor and consequential amendments and repeals (section 89); covers commencement of the Act (section 90); and sets out the short title of the Act (section 91).

THE ACT - SECTION BY SECTION

PART 1 - FIRE AND RESCUE AUTHORITIES

Section 1 - Fire and rescue authorities

9.     This section defines what is meant by "fire and rescue authority": the council for the local government area as constituted under section 2 of the Local Government etc. (Scotland) Act 1994 and, if its area extends into the sea, the low water mark shall constitute its seaward boundary.

Sections 2, 3, 4 and 5 - Joint fire and rescue boards

10.     These provisions allow for the combining of fire and rescue authorities in an amalgamation scheme made by order by the Scottish Ministers on the grounds of improving efficiency, effectiveness and economy. Schemes may be varied or revoked by order. Any such scheme will constitute a joint fire and rescue board that will carry out the functions of each authority for the combined area. Schedule 1 makes supplementary provision in relation to the powers of joint boards.

11.     In all cases, the Scottish Ministers will be required to consult the existing fire authorities which will, or may, be affected and such other persons as Ministers consider appropriate. Similar schemes already exist under section 36 of the 1947 Act or section 147 of the Local Government (Scotland) Act 1973. Section 5 provides that these schemes will continue to have effect despite the repeal of the 1947 Act and section 147 of the Local Government (Scotland) Act 1973; they will be deemed to be schemes under section 2(1) of this Act. This section also makes provision for the transfer of property, rights, liabilities and staff from an existing board to a joint fire and rescue board constituted by a section 2(1) scheme. The orders under section 2(1) and 5(3) are subject to draft affirmative resolution procedure in the Scottish Parliament (section 88(4)(a)).

Section 6 - Meaning of "relevant authority"

12.     The term "relevant authority" is used throughout the Act and is defined at section 6 as a fire and rescue authority as constituted under section 1 or a joint fire and rescue board constituted under an amalgamation scheme under section 2(1). "Relevant authority" is used throughout these Notes in the same way.

PART 2 - FIRE AND RESCUE SERVICES

Chapter 1 - Appointment of Chief Officer

Section 7 - Appointment of Chief Officer

13.     This section provides for the appointment by each relevant authority of a Chief Officer who will be responsible to that authority for the discharge of the authority's functions by its employees.

Chapter 2 - Principal fire and rescue functions

Section 8 - Fire safety

14.     This provision places a statutory duty on relevant authorities to make provision for the purpose of promoting fire safety. At present, fire authorities undertake community fire safety initiatives. These take various forms, for example, schools education programmes, safety information advisory sessions for community groups and attendance at public events, fetes, etc. In some cases individual home fire safety advisory visits are undertaken and advice is given to homeowners on fire prevention issues. This work is currently carried out on a discretionary basis and the effect of section 8 is to make it a statutory duty.

Sections 9 and 10 - Fire-fighting and road traffic accidents

15.     Section 9 re-enacts the existing statutory duty for a relevant authority to plan and make arrangements for fighting fires and protecting life and property from fires within its area. A relevant authority is required to secure sufficient equipment etc. and training to discharge its duty in normal circumstances. It must also put in place effective arrangements for receiving and responding to calls for help and for obtaining information to exercise its functions; the latter might include, for example, information about the nature and characteristics of buildings within the authority's area or availability of, and access to, water supplies.

16.     Section 10 places a duty on a relevant authority to make provision for rescuing persons from road traffic accidents and for dealing with the aftermath of such accidents. Historically, the risk of fire was the trigger for attendance at such an incident. Whilst advances in vehicle design have seen the incidence of fire following an accident decrease, calls to assist with the rescue of people from wreckage and protect them from harm caused by spillage of hazardous substances have increased dramatically. A relevant authority is required therefore to secure sufficient resources and training to discharge its duties in all normal circumstances. It must also put in place effective arrangements for receiving and responding to calls for help and for obtaining information to exercise its functions (for example, knowledge of local road and trunk road networks).

17.     Under both sections 9 and 10 relevant authorities must seek to prevent or limit damage to property in exercising these statutory functions.

Section 11 - Conferral of functions in relation to other emergencies

18.     This section allows the Scottish Ministers to confer on a relevant authority specified functions by order (an "additional function order"). This might relate to such matters as flooding, chemical spills and terrorist incidents.

19.     The Scottish Ministers will also have the power, by additional function order, to direct relevant authorities as to how they should plan, equip for, and respond to such emergencies. This may include, for example, directions as to the deployments of mass decontamination equipment for civil resilience purposes. The intention is to ensure consistency of approach towards emergencies, particularly in response to terrorist incidents.

20.     This section also allows the order to require an authority to respond to an emergency that has arisen outside its own area if, for example, it has more appropriate equipment and training than the authority in whose area the emergency has occurred.

21.     The term "emergency" is defined for the purposes of Part 2 of this Act at section 52.

Chapter 3 - Ancillary functions

Section 12 - Emergency directions

22.     Section 12 gives the Scottish Ministers power to direct relevant authorities to respond to a particular fire or emergency incident, either in its own area or in that of another authority. The Scottish Ministers will also be able to direct an authority not to take any action in the event of such an emergency if, for example, another authority is better equipped to do so.

Section 13 - Power to respond to other eventualities

23.     This section provides relevant authorities with discretion to equip, and respond to, events beyond its core functions provided for at sections 8 to 11 and 61. Such an authority will be free to act where it believes there is a risk to life or the environment. This would allow, for example, specialist activities such as rope rescue.

Section 14 - Provision of other services

24.     Section 14 provides a relevant authority with the power to agree to the use of its equipment or personnel for any purpose it believes appropriate wherever it so chooses. For example, an authority may agree to help pump a local pond as a service to its community.

Section 15 - Provision of centres for education and training

25.     This section re-enacts provisions in the 1947 Act that allow a relevant authority to establish training centres in respect of any function conferred under these provisions.

Section 16 - Charging

26.     Section 16 allows the Scottish Ministers to authorise relevant authorities to charge for services and to specify in an order the persons who may be subject to the charge. At present fire authorities have discretionary powers to charge for exercising certain functions. However, relevant authorities will not be able to charge for action taken in respect of extinguishing fires, protecting property in the event of fires or protecting life, except in relation to fighting fires at sea (which, for authorities with a seaward boundary, means beyond the low water mark). In such circumstances, the relevant authority has no statutory fire-fighting duty under section 9 because the incident is outwith their area.

27.     Subsection (4) maintains the existing arrangement that allows fire authorities to set their own level of charge, and to vary the charge depending on the type of service provided and the circumstances of a particular incident, or to choose not to charge at all.

28.     Subsection (5) sets out that in setting the amount of any charge a relevant authority shall secure that the income from charging does not exceed the cost to the relevant authority for providing the service for which charges are levied when looked at over any particular financial year.

Chapter 4 - Water supply

Section 17 - Duty to secure water supply

29.     This section re-enacts section 13 of the 1947 Act, requiring relevant authorities to take all reasonable measures to ensure an adequate supply of water and the setting out of the purposes for which they should secure that supply.

Section 18 - Use of water

30.     This section allows a relevant authority to use any suitable supply of water for specified purposes. Whilst it provides for payment of reasonable compensation for water this is limited by reference to section 9A of the Water (Scotland) Act 1980, which expressly forbids charging by a water undertaker in respect of: water taken for the purpose of extinguishing fires or for any other emergency purposes; water taken for testing apparatus used for extinguishing fires; or for fire fighting training. This section re-enacts section 15(2) of the 1947 Act.

Section 19 - Agreements in relation to water supply

31.     This section re-enacts section 14(1) and 15(1) of the 1947 Act and allows a relevant authority to enter into agreements with Scottish Water or with persons other than Scottish Water in order to secure the use of water; to improve access to water; or to lay and maintain pipes and to carry out other works in connection with the use of water. Subsection (2) allows for any agreement to include terms for payment, other than for the purposes covered by section 9A of the Water (Scotland) Act 1980.

32.     Subsection (3) places a requirement on Scottish Water not to unreasonably refuse to enter into an agreement in relation to water supply and subsection (4) provides that Scottish Ministers may determine whether any refusal by Scottish Water to enter into an agreement under this section is unreasonable.

Section 20 - Emergency supply by Scottish Water

33.     This section re-enacts sections 30(4) and (4A) of the 1947 Act. Subsection (1) places an obligation on Scottish Water to take all necessary steps to increase supply or pressure of water if requested to do so by a relevant authority for the purposes in section 17(2). Subsection (2) allows Scottish Water to shut off water from the mains and pipes in any area to enable it to comply with a request to increase supply or water pressure. Subsection (3) safeguards the relevant authority, Scottish Water or any other person from any liability for anything done by Scottish Water in complying with its obligations. Subsection (4) makes it an offence for Scottish Water, without reasonable excuse, to fail to take any steps which it is obliged to take and provides for a level 5 fine (currently £5,000) on summary conviction.

Section 21 - Fire hydrants: provision etc.

34.     Subsection (1) applies sections 19 to 22 of Schedule 4 to the Water (Scotland) Act 1980 to Scottish Water. Scottish Water are therefore required, at the request of a relevant authority (see paragraph 9 of schedule 3 to this Act) to fix fire hydrants on their mains, keep them in good order and renew them. As soon as such a hydrant is complete, Scottish Water must - if required by the relevant authority - deposit a key in appropriate places. The costs incurred shall be defrayed by the relevant authority. Scottish Water must also, at the request and expense of the owner or occupier of any factory or place of business near a road, where certain requirements are fulfilled, fix a hydrant, keep it in good order and from time to time renew it.

35.     Subsection (2) requires Scottish Water to mark the location of every fire hydrant with a notice or distinguishing mark and under subsection (4) the costs of doing this can be charged to the relevant authority in whose area the hydrant is situated.

36.     Subsection (5) grants the Scottish Ministers power to make regulations providing for uniformity in fire hydrants and the distinguishing marks and notices indicating their location. This re-enacts section 14(6) of the 1947 Act.

37.     Subsection (6) provides that, in circumstances where a hydrant is damaged as a result of authorised use which was not for the purposes of fire fighting or other relevant authority purposes, the liability for the cost of repair or replacement will not fall on the relevant authority. This re-enacts section 14(3)(b) of the 1947 Act.

Section 22 - Fire hydrants: recovery of costs

38.     Section 21 of Schedule 4 to the Water (Scotland) Act 1980 provides that the cost of fire hydrants and of fixing, maintaining and renewing them is borne by the relevant authority. Section 22 amends the Water (Scotland) Act 1980 by inserting a new section 21A into Schedule 4, which provides Scottish Ministers with a power to make regulations setting out the persons (with the exception of Scottish Water) from whom, and the circumstances in which, a relevant authority may recover costs in respect of fire hydrants.

Section 23 - Fire hydrants: offences

39.     This section makes it an offence for any person to use a fire hydrant provided by Scottish Water other than for fire fighting or any other purpose of a relevant authority, or other than for any purpose authorised by Scottish Water. It also makes it an offence to damage or obstruct a fire hydrant provided by Scottish Water other than as a consequence of its use for those purposes.

40.     Under subsection (3) a person guilty of an offence under subsection (1) is liable on summary conviction to a maximum of a level 5 fine (currently £5000).

41.     This section re-enacts section 14(5) of the 1947 Act.

Section 24 - Notice of works affecting water supply and fire hydrants

42.     This section re-enacts sections 16(1) to (3) of the 1947 Act and requires any person who proposes to carry out any works for the purpose of supplying water to any part of the area of a relevant authority to give written notice to the authority under subsection (1). The notice period for doing so is either 14 days in a case where proposed works are to be carried out under a requirement under any enactment other than the Water (Scotland) Act 1980, or 6 weeks in any other case. A person proposing to carry out any works affecting a fire hydrant is required to give at least seven days' notice in writing.

43.     Under subsection (4), if it is not practicable for written notice to be given in accordance with the timescales set out in subsections (1) and (3), the person is regarded as having given such notice if it is given as soon as practicable. It is an offence under subsection (5), if, without reasonable excuse, a person fails to give notice as required. Under subsection (6) a person is liable on summary conviction to a maximum of a level 5 fine.

Chapter 5 - Powers of employees and constables

Section 25 - Powers of authorised employees in relation to emergencies

44.     This section provides an employee of a relevant authority who has written authorisation from that authority with powers to do what he reasonably thinks necessary to deal with fires, road traffic accidents and other emergencies. It replaces section 30(1) of the 1947 Act which was limited to dealing with extinguishing or preventing the spread of fires and recognises the wider range of duties of fire fighters, including the work which fire authorities do in responding to road traffic accidents.

Section 26 - Powers of constables in relation to fires

45.     This section sets out the powers of constables to do whatever he or she reasonably thinks necessary in the event that the constable reasonably believes a fire has broken out. It replicates powers under the 1947 Act.

Section 27 - Powers of authorised employees in relation to obtaining information.

46.     This section allows an authorised employee of a relevant authority to enter premises to obtain information that is needed for the discharge of the core functions of fire fighting (section 9), dealing with road traffic accidents (section 10) and specified emergencies (section 11). Such entry must be at a reasonable time, cannot be forcible and 24 hours notice must be given to the occupier of a private dwelling, but these safeguards may be overridden if a warrant is obtained from a sheriff or justice of the peace.

Section 28 - Giving of notices required by section 27

47.     Section 28 provides for the means by which a notice under section 27 may be served.

Section 29 - Powers of authorised employees in relation to investigating fires

48.     This section allows an authorised employee of a relevant authority to enter premises where a fire has occurred (including land and premises on which there is a vehicle in which there has been a fire (such as a garage)) in order to investigate the cause and progression of the fire that has occurred there, and grants that officer powers, including the power to take samples.

Section 30 - Exercise of powers under sections 27 and 29: securing of premises

49.     Section 30 obliges an authorised employee of a relevant authority who has entered a place under section 27 or 29 to leave the premises as secure against unauthorised entry as they were when found.

Section 31 - Sections 27 and 29: offences

50.     Section 31 makes failure (without reasonable excuse) to comply with any requirement under sections 27(4)(b) and 29(2)(g) an offence and a person may be liable on summary conviction to a maximum of a level 4 fine (currently £2500).

Section 32 - Use of commercially sensitive information

51.     Section 32 replicates the provisions of the 1947 Act which made it an offence for any person to make use of or disclose any commercially sensitive information which they obtain in the course of exercising their powers under sections 25, 26, 27 or 29. A person is liable on summary conviction to a fine not exceeding level 4 or to 3 months' imprisonment.