The Fire (Scotland) Act 2005 (Consequential Modifications and Savings) Order 2006

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Draft Order laid before the Scottish Parliament under section 88 (4 ) of the Fire (Scotland ) Act 2005 , for approval by resolution of the Scottish Parliament.

(a) remain in effect, and

(b) be deemed to be, and treated as if it were, a prohibition notice (as defined in subsection (4) of section 63 of the Fire (Scotland) Act 2005) served under that section.

Saving for regulations under section 12 of the Fire Precautions Act 1971
     4. Notwithstanding the repeal by this Order of section 12 of the Fire Precautions Act 1971, the Fire Precautions (Sub-surface Railway Stations) Regulations 1989[3]shall remain in force and shall have effect as if made under section 58 of the Fire (Scotland) Act 2005.


          
Authorised to sign by the Scottish Ministers

St Andrew's House, Edinburgh
           2006

    " (3A) No condition may be specified under subsection (3) of this section which relates to any matter in relation to which requirements or prohibitions are or could be imposed by virtue of Part 3 of the Fire (Scotland) Act 2005 (asp 5).".

(a) after subsection (2) insert–

    " (2A) Where Part 3 of the Fire (Scotland) Act 2005 (asp 5) applies to the land, no condition shall be attached to a site licence which relates to any matter in relation to which requirements or prohibitions are or could be imposed by virtue of that Part."; and

(b) after subsection (6) insert–

    " (6A) No model standards may be specified under subsection (6) as respects land in relation to which Part 3 of the Fire (Scotland) Act 2005 (asp 5) applies if the standards relate to any matter in relation to which requirements or prohibitions are or could be imposed by virtue of that Part.".

    (3) In section 8 (power to alter conditions attached to site licences), after subsection (1) insert–

    " (1A) Where Part 3 of the Fire (Scotland) Act 2005 (asp 5) applies in relation to the land to which a site licence relates, no alteration under subsection (1) may be made so as to add a new condition to, or vary an existing condition of, the site licence if the new condition or, as the case may be, existing condition as varied relates to any matter in relation to which requirements or prohibitions are or could be imposed by virtue of that Part.".

    " (3A) Where Part 3 of the Fire (Scotland) Act 2005 (asp 5) applies in relation to premises, no term which relates to any matter in relation to which requirements or prohibitions are or could be imposed by virtue of that Part shall be included in a licence granted under this Act in respect of those premises.".

" "the appropriate fire and rescue authority", in relation to premises, means–
(a) where Part 3 of the Fire (Scotland) Act 2005 (asp 5) applies in relation to the premises, the enforcing authority (as defined in section 61(9) of that Act of 2005);

(b) in any other case, the relevant authority (as defined in section 6 of that Act of 2005) for the area where the premises are (or are to be) situated;".

    (4) In Schedule 2 (grant, renewal, cancellation and transfer of licences)–

(a) for the words "the appropriate authority" wherever they appear, substitute "the appropriate fire and rescue authority";

(b) in paragraph 20–


(i) in sub-paragraph (1), after paragraph (a) insert–


" (aa) where Part 3 of the Fire (Scotland) Act 2005 (asp 5) applies in relation to the relevant premises, that any requirements or prohibitions imposed by virtue of that Part have not been complied with in respect of the relevant premises;";



(ii) after sub-paragraph (2) insert–

    " (2A) For the purposes of sub-paragraph (1), a person shall be taken not to be a fit and proper person to be the holder of a licence under this Act if he has been convicted of an offence by virtue of any provision of Part 3 of the Fire (Scotland) Act 2005 (asp 5) in respect of the relevant premises."; and

(c) in paragraph 65(2)(d), for the words "appropriate fire authority" substitute "appropriate fire and rescue authority".

The Health and Safety at Work etc . Act 1974 (c .37)

     6. In section 23 of the Health and Safety at Work etc. Act 1974 (supplementary provisions about notices), in subsection (4)[7], for the words from "the authority" to the end of that subsection substitute the following–

" (a) where Part 3 of the Fire (Scotland) Act 2005 (asp 5) applies in relation to the premises, the enforcing authority (as defined in section 61(9) of that Act);

(b) in any other case, the relevant authority (as defined in section 6 of that Act) for the area where the premises are (or are to be) situated.".


The Safety of Sports Grounds Act 1975 (c .52)

     7. —(1) The Safety of Sports Grounds Act 1975 is amended as follows.

    (2) In section 2 (contents of safety certificates), after subsection (2A)[8] insert–

    " (2B) No condition of a safety certificate shall require a person to contravene any provision of Part 3 of the Fire (Scotland) Act 2005 (asp 5) or regulations made by virtue of that Part.".

    (3) In section 4 (amendment etc. of certificates)–

(a) after subsection (1) insert–

    " (1A) The local authority shall, if it appears to them that a safety certificate would require a person to contravene any provision of Part 3 of the Fire (Scotland) Act 2005 (asp 5) or regulations made by virtue of that Part, amend the safety certificate by notice in writing to its holder so as to remove the requirement."; and

(b) in subsection (4) after "(1)(a)" insert "or (1A)".

    (4) After section 4 insert–

     " 4A. Safety certificates: fire safety
A safety certificate has no effect to the extent that it would require a person to contravene any provision of Part 3 of the Fire (Scotland) Act 2005 (asp 5) or regulations made by virtue of that Part.".

    (5) In subsection (1) of section 9 (exclusion of other statutory requirements), in paragraph (e), for "those terms and conditions" substitute "the terms and conditions of the safety certificate".

(a) in subsection (5)[10], for the words from "the", where it third occurs, to the end of the subsection substitute–


" (a) where Part 3 of the Fire (Scotland) Act 2005 (asp 5) applies (or, in the case of an application for the provisional grant of a licence in respect of premises whose construction is to be completed, would apply) to the premises to which the new licence relates, the enforcing authority;

(b) in any other case, the fire and rescue authority for the area in which the premises are, or (as the case may be) will be, situated."; and



(b) in subsection (6)[11], after "with" insert "the enforcing authority or, as the case may be,".

    (4) In section 24 (special provisions relating to applications for renewal of a licence), in subsection (1)[12], for the words from "the", where it third occurs, to the end of the subsection substitute–

" (a) where Part 3 of the Fire (Scotland) Act 2005 (asp 5) applies to the premises to which the application for such renewal relates, the enforcing authority;

(b) in any other case, the fire and rescue authority for the area in which those premises are situated.".

    (5) In section 35 (consent of licensing board for reconstruction etc. of certain licensed premises), in subsection (3), for the words from "the", where it second occurs, to the end of the subsection substitute–

" (a) where Part 3 of the Fire (Scotland) Act 2005 (asp 5) applies to premises in respect of which such consent is sought, the enforcing authority;

(b) in any other case, the fire and rescue authority for the area in which those premises are situated.".

    (6) In section 105 (procedure on application for grant or renewal of certificate of registration), in subsection (3), for paragraph (c) substitute–

" (c) where Part 3 of the Fire (Scotland) Act 2005 (asp 5) applies to the premises to which the application relates, the enforcing authority or, in any other case, the fire and rescue authority for the area in which those premises are situated.".

    (7) In section 139(1), after the definition of "enactment" insert–

" "enforcing authority" has the meaning given by section 61(9) of the Fire (Scotland) Act 2005 (asp 5);".

" (a) the functions under Part 3 of the Fire (Scotland) Act 2005 (asp 5) of an enforcing authority (as defined in section 61(9) of that Act);".


The Zoo Licensing Act 1981 (c .37)

     10. —(1) Section 3 of the Zoo Licensing Act 1981 (consideration of application for licence) is amended as follows.

    (2) In subsection (2), for paragraph (c)[14] substitute–

" (c) the appropriate authority."

    (3) After subsection (2), insert–

    " (3) In subsection (2) "the appropriate authority" means–


(a) where Part 3 of the Fire (Scotland) Act 2005 (asp 5) applies in relation to the zoo–


(i) the enforcing authority within the meaning of section 61(9) of that Act, and

(ii) the relevant authority (as defined in section 6 of that Act) in whose area the zoo or any part of it is, or is to be, situated if that authority is not the enforcing authority mentioned in sub-paragraph (i);



(b) in any other case, the relevant authority in whose area the zoo or any part of it is, or is to be, situated.".



The Civic Government (Scotland ) Act 1982 (c .45)

     11. —(1) The Civic Government (Scotland) Act 1982 is amended as follows.

    (2) In section 89 (safety of platforms etc.), for subsection (4)[15] substitute–

    " (4) Where–


(a) Part 3 of the Fire (Scotland) Act 2005 (asp 5) ("the 2005 Act") applies in relation to the premises where the raised structure is situated; and

(b) the local authority are not the enforcing authority (as defined in section 61(9) of the 2005 Act),



the local authority shall consult the enforcing authority before making their decision under subsection (3)(b) above.

    (4A) Where–



(a) Part 3 of the 2005 Act does not apply in relation to the premises where the raised structure is situated; and

(b) the local authority are not the appropriate relevant authority,



the local authority shall consult the appropriate relevant authority before reaching their decision under subsection (3)(b) above.

    (4B) In subsection (4A) "appropriate relevant authority" means a relevant authority (as defined in section 6 of the 2005 Act) discharging in the area of the local authority the functions of a relevant authority under that Act.".

    (3) In section 93 (fire precautions in common stairs etc.)–

(a) in subsection (3), at the beginning insert–

" Where Part 3 of the Fire (Scotland) Act 2005 (asp 5) applies in relation to the common property, an enforcement officer appointed under section 61(3) of that Act or, in any other case,";

(b) in subsection (4), at the beginning insert–

" Where Part 3 of the Fire (Scotland) Act 2005 (asp 5) applies in relation to the common property, the enforcing authority or, in any other case,";

(c) in subsection (6), after "by", where it first occurs, insert "an enforcing authority or"; and

(d) in subsection (7)[16], at the beginning insert "The enforcing authority or, as the case may be,".

    (4) In section 98[17] (luminous tube signs), after subsection (1) insert–

    " (1A) Where Part 3 of the Fire (Scotland) Act 2005 (asp 5) applies in relation to premises where there is an electrical luminous tube sign, paragraphs (a), (b) and (c) of subsection (1) above apply as if references to the appropriate relevant authority were references to the enforcing authority.".

    (5) In section 133, after "requires–" insert–

" "enforcing authority" has the meaning given by section 61(9) of the Fire (Scotland) Act 2005 (asp 5)."

    (6) In Schedule 1[18] (licensing – further provisions as to the general system)–

(a) in sub-paragraph (1) of paragraph 2, for "in premises" substitute–


" (a) in premises to which Part 3 of the Fire (Scotland) Act 2005 (asp 5) applies, the enforcing authority;

(b) in any other premises;"



(b) in paragraph 5–



(i) in sub-paragraph (2), at the beginning insert "Subject to sub-paragraph (2A),";

(ii) after that sub-paragraph insert–

    " (2A) The conditions referred to in sub-paragraph (1)(b) above shall not relate to any matter in relation to which requirements or prohibitions are or could be imposed by virtue of Part 3 of the Fire (Scotland) Act 2005 (asp 5)."; and

(iii) in sub-paragraph (5)(d), for "in premises" substitute–


" (a) in premises to which Part 3 of the Fire (Scotland) Act 2005 (asp 5) applies, the enforcing authority;

(b) in any other premises";



(c) in sub-paragraph (3)(a) of paragraph 7, for "in premises" substitute–



" (i) in premises to which Part 3 of the Fire (Scotland) Act 2005 (asp 5) applies, the enforcing authority;

(ii) in any other premises".



(d) in paragraph 9–



(i) in sub-paragraph (5) for "in premises" substitute–


" (a) in premises to which Part 3 of the Fire (Scotland) Act 2005 (asp 5) applies, the enforcing authority;

(b) any other premises"; and


(ii) in sub-paragraph (7) for "to premises" substitute–


" (a) to premises to which Part 3 of the Fire (Scotland) Act 2005 (asp 5) applies, the enforcing authority;

(b) to any other premises";



(e) in paragraph 10–



(i) in sub-paragraph (2)(b), for "mentioned in" substitute "required to be notified under";

(ii) after sub-paragraph (2) insert–

    " (2A) Where the premises mentioned in sub-paragraph (2)(a) above are premises to which Part 3 of the Fire (Scotland) Act 2005 (asp 5) applies, that sub-paragraph applies as if the reference to the appropriate relevant authority were a reference to the enforcing authority"; and

(iii) in sub-paragraph (4) for "in premises" substitute–


" (a) in premises to which Part 3 of the Fire (Scotland) Act 2005 (asp 5) applies, the enforcing authority;

(b) in any other premises";



(f) in sub-paragraph (7)(d) of paragraph 11, for "in premises" substitute–



" (a) in premises to which Part 3 of the Fire (Scotland) Act 2005 (asp 5) applies, the enforcing authority;

(b) in any other premises";



(g) in paragraph 12–



(i) in sub-paragraph (4) for "in premises" substitute–


" (a) in premises to which Part 3 of the Fire (Scotland) Act 2005 (asp 5) applies, the enforcing authority;

(b) in any other premises"; and


(ii) in sub-paragraph (7) for "in premises" substitute–


" (a) in premises to which Part 3 of the Fire (Scotland) Act 2005 (asp 5) applies, the enforcing authority;

(b) in any other premises"; and



(h) in paragraph 17–

(i) in sub-paragraph (4)(c) for "in premises" substitute–



" (i) in premises to which Part 3 of the Fire (Scotland) Act 2005 (asp 5) applies, the enforcing authority;

(ii) in any other premises"; and



(ii) in sub-paragraph (4)(d) for "in premises" substitute–



" (i) in premises to which Part 3 of the Fire (Scotland) Act 2005 (asp 5) applies, the enforcing authority;

(ii) in any other premises".

    (7) In Schedule 2[19] (control of sex shops)–

(a) in sub-paragraph (1) of paragraph 8, after "and" insert–


" (a) where Part 3 of the Fire (Scotland) Act 2005 (asp 5) applies to the premises, vehicle vessel or stall to which the licence relates, to the enforcing authority;

(b) where Part 3 of that Act does not so apply,";



(b) in paragraph 9–



(i) in sub-paragraph (2), at the beginning insert "Subject to sub-paragraph (2A)";

(ii) after that sub-paragraph insert–

    " (2A) The conditions referred to in sub-paragraph (1) above shall not relate to any matter in relation to which requirements or prohibitions are or could be imposed by virtue of Part 3 of the Fire (Scotland) Act 2005 (asp 5).";

(c) in sub-paragraph (1)(d) of paragraph 10, at the beginning insert "where Part 3 of the Fire (Scotland) Act 2005 (asp 5) applies to the premises, vehicle, vessel or stall to which the licence relates, the enforcing authority or, where Part 3 of that Act does not so apply,";

(d) in sub-paragraph (5)(d) of paragraph 13, at the beginning insert "where Part 3 of the Fire (Scotland) Act 2005 (asp 5) applies to the premises, vehicle, vessel or stall to which the licence relates, the enforcing authority or, where Part 3 of that Act does not so apply,";

(e) in paragraph 14–


(i) in sub-paragraph (5), for "with" substitute–


" (a) where Part 3 of the Fire (Scotland) Act 2005 (asp 5) applies to the premises, vehicle, vessel or stall, the enforcing authority;

(b) where Part 3 of that Act does not so apply,"; and


(ii) in sub-paragraph (7), after "and" insert "either the enforcing authority where Part 3 of that Act applies in relation to the premises, vehicle, vessel or stall or, where Part 3 of that Act does not so apply,";



(f) in paragraph 15–



(i) after sub-paragraph (2) insert–

    " (2A) Where the proposed variation is in respect of a licence which relates to any premises, vehicle, vessel or stall to which Part 3 of the Fire (Scotland) Act 2005 (asp 5) applies, sub-paragraph (2)(a) above applies as if the reference to the appropriate relevant authority were a reference to the enforcing authority."; and

(ii) in sub-paragraph (5), after "and" insert "either the enforcing authority where Part 3 of that Act applies in relation to the premises, vehicle, vessel or stall or, where Part 3 of that Act does not so apply,"; and



(g) in sub-paragraph (4)(b) of paragraph 23, after "or" insert–



" (i) where Part 3 of the Fire (Scotland) Act 2005 (asp 5) applies to the premises, vehicle, vessel or stall to which the licence relates, the enforcing authority;

(ii) where Part 3 of that Act does not so apply,".


The Cinemas Act 1985 (c .13)

     12. —(1) The Cinemas Act 1985 is amended as follows.

    (2) In section 1 (licence required for exhibitions)–

(a) in subsection (2), after "to", where it fourth occurs, insert "subsection (2A) and to"; and

(b) after subsection (2) insert–

    " (2A) Where Part 3 of the Fire (Scotland) Act 2005 (asp 5) applies in relation to the premises, no term, condition or restriction may be imposed under subsection (2) which relates to any matter in relation to which requirements or prohibitions are or could be imposed by virtue of that Part.".

    (3) In section 2 (consent required for exhibitions for children)–

(a) in subsection (2), after "to", where it first occurs, insert "subsection (2A) and to"; and

(b) after subsection (2) insert–

    " (2A) Where Part 3 of the Fire (Scotland) Act 2005 (asp 5) applies in relation to the premises, no condition or restriction may be imposed under subsection (2) which relates to any matter in relation to which requirements or prohibitions are or could be imposed by virtue of that Part.".

    (4) In the provisions mentioned in sub-paragraph (5), for "relevant" (in each place) substitute "fire".

    (5) Those provisions are–

(a) subsections (1)(b), (2) and (3)[20] of section 3 (grant, renewal and transfer of licence or consent);

(b) subsection (1)(a)[21] of section 7 (exhibitions in premises used occasionally);

(c) subsection (1)(b)[22] of section 8 (exhibitions in movable buildings, etc);

(d) subsection (3)[23] of section 16 (appeals against decisions of licensing authority).

    (6) In subsection (10)[24] of section 3, in the definition of "appropriate relevant authority"–

(a) for "relevant", where it first occurs, substitute "fire"; and

(b) after "means" insert–


" (a) where Part 3 of the Fire (Scotland) Act 2005 (asp 5) applies to the premises, the enforcing authority as defined in section 61(9) of that Act;

(b) in any other case,".

    (7) In subsection (2)[25] of section 8, in the definition of "appropriate relevant authority"–

(a) for "relevant", where it first occurs, substitute "fire"; and

(b) for "any premises, means" substitute “the building or structure, means–


" (a) where Part 3 of the Fire (Scotland) Act 2005 (asp 5) applies to the building or structure, the enforcing authority as defined in section 61(9) of that Act,

(b) in any other case,".

    (8) In subsection (1)[26] of section 21, in the definition of "appropriate relevant authority," for "relevant" substitute "fire".

    " (3A) No condition of a safety certificate shall require a person to contravene any provision of Part 3 of the Fire (Scotland) Act 2005 or of regulations made by virtue of that Part.".

    (3) In section 29 (amendment, cancellation etc. of certificates)–

(a) after subsection (1) insert–

    " (1A) The local authority shall, if it appears to them that a safety certificate would require a person to contravene any provision of Part 3 of the Fire (Scotland) Act 2005 (asp 5) or regulations made by virtue of that Part, amend the safety certificate by notice in writing to its holder so as to remove the requirement."; and

(b) in subsection (4) after "(1)(b)" insert "or (1A)".

    (4) After section 29 insert–

     " 29A. Safety certificates: fire safety
A safety certificate has no effect to the extent that it would require a person to contravene any provision of Part 3 of the Fire (Scotland) Act 2005 (asp 5) or regulations made by virtue of that Part."

    " (4A) A person takes required fire precautions in respect of premises if–


(a) he has been served with a notice under section 63 of the Fire (Scotland) Act 2005 (asp 5) (prohibition notices) in respect of the premises specifying matters giving rise to a risk of a kind mentioned in subsection (2) of that section, and

(b) he takes steps to remedy the matters specified in the prohibition notice.".


The Gambling Act 2005 (c .19)

     16. —(1) The Gambling Act 2005 is amended as follows.

    (2) In section 157 (responsible authorities) in paragraph (f), for the words from "council" to "(c.39)" substitute "relevant authority as defined in section 6 of the Fire (Scotland) Act 2005 (asp 5)".

    (3) In section 304 (authorised persons), in subsection (4), for paragraph (a) substitute–

" (a) where Part 3 of the Fire (Scotland) Act 2005 (asp 5) applies, an enforcement officer appointed under section 61(3) of that Act,".

    (4) In section 354 (Crown application), for subsection (3) substitute–

    " (3) A reference to a responsible authority (being an authority mentioned in section 157(f) in a provision of this Act which, by virtue of subsection (1), applies to premises owned or occupied by the Crown shall have effect as if the reference were a reference to the enforcing authority (as defined in section 61(9) of the Fire Scotland Act 2005 (asp 5))."

(a) subsections (4)(b) and 8(b) of section 138 (variation of HMO licence);

(b) subsection(2)(c) of section 139 (revocation of HMO licence),

(c) subsections (2)(b) and (7)(c) of section 158 (notice of decisions);

(d) subsection (3)(b)(iii) of section 164 (joint licence holders);

(e) paragraph 2(9)(a) of schedule 4 (applications for HMO licences: procedure).

    (4) In subsection (8)(c) of section 158, for the words from "chief" to "service" substitute "enforcing authority".

    (5) In section 166, after the definition of "chief constable" insert–

" "enforcing authority" has the meaning given by section 61(9) of the Fire (Scotland) Act 2005 (asp 5),".

[2] 1971 c.40.back

[3] S.I. 1989/1401 amended by S.I. 1991/259 and 1994/2184.back

[4] Section 2 was amended by the Factories Act 1961 (c.34), Schedule 6, by the Cinemas Act 1985 (c.13), section 24 and Schedule 2, by S.I. 1992/1811 and 2002/2776.back

[5] Section 1 was amended by the Local Government (Scotland) Act 1973 (c.65), section 209(1) and Schedule 25, paragraph 26, and Schedule 29.back

[6] Subsection (9) was amended by the Gaming (Amendment) Act 1990 (c.26), section 1 and the Schedule by S.S.I. 2005/383.back

[7] Subsection (4) was amended by S.S.I. 2005/383.back

[8] Subsection (2A) was inserted by the Fire Safety and Safety of Places of Sport Act 1987 (c.27), section 21.back

[9] Paragraph (e) of section 16(1) was inserted by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c.40) Schedule 8, and amended by the Fire (Scotland) Act 2005 (asp 5) schedule 3.back

[10] Subsection (5) of section 23 was amended by the Fire (Scotland) Act 2005 (asp 5) schedule 3.back

[11] Subsection (6) of section 23 was amended by the Building (Scotland) Act 2003 (asp 8) schedule 6 and by the Fire (Scotland) Act 2005 (asp 5) schedule 3.back

[12] Subsection (1) of section 24 was amended by the Fire (Scotland) Act 2005 (asp 5) schedule 3.back

[13] Paragraph (a) of section 152(1) was amended by S.S.I. 2005/383.back

[14] Paragraph (c) of section 3(2) was amended by S.S.I. 2005/383.back

[15] Subsection (4) was amended by S.S.I. 2005/383.back

[16] Subsection (7) was amended by S.S.I. 2005/383.back

[17] Section 98 was amended by S.S.I. 2005/383.back

[18] Schedule 1 was amended by S.S.I. 2005/383.back

[19] Schedule 2 was amended by the Local Government etc. (Scotland) Act 1994 c.39, schedule 1, paragraph 129(22) and by S.S.I. 2005/383.back

[20] Subsections (1)(b), (2) and (3) of section 3 were amended by S.S.I. 2005/383.back

[21] Subsection (1)(a) of section 7 was amended by S.S.I. 2005/383.back

[22] Subsection 1(b) of section 8 was amended by S.S.I. 2005/383.back

[23] Subsection (3) of section 16 was amended by S.S.I. 2005/383.back

[24] Subsection (10) of section 3 was amended by S.S.I. 2005/383.back

[25] Subsection (2) of section 8 was amended by S.S.I. 2005/383.back

[26] Subsection (1) of section 21 was amended by S.S.I. 2005/383.back

[27] The schedule was amended by S.S.I. 2005/383.back