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Law and the RRO Order - Five years since it became law in England and Wales the Regulatory Reform (Fire Safety) Order continues to cause controversy. Introduced in 2006, this complex piece of legislation generates ongoing challenges for duty holders, the enforcing fire service and legal practitioners. It is only through the growing number of prosecutions under the Order and its interpretation in the courts that many questions will start to be answered.
In legal terms, the legislation is still in its infancy with the country's leading fire expert's expressing concerns over definition of certain key terms which risk undermining the fire safety regime that the Order supports.
Risk Based system
The shift from a prescriptive based system of fire certificates under the previous legislation, to the self compliance, risk based system of the Order, which places the onus firmly on 'responsible persons' to assess and manage risk. Overarching legal responsibility lies with the responsible person. This is typically employers, owners/ occupiers, or others in control of the premises. The Order also imposes requirements on other duty holder's who have, to some extent, control of the premises, for example, managing agents and facilities managers. Furthermore, it requires responsible persons in various circumstances to have a 'competent person' with technical expertise to assist them.
In the event of alleged breaches of the Order, it is up to the responsible person to demonstrate that their failure was not 'reasonably practicable'.
Areas of Concern
There are a number of particular areas of difficulty with the Order. The 'bearers of burden' - that is the extensive range of responsible persons and other duty holders. Whilst the intention of the Order is to further fire safety by causing as many as possible who govern fire safety or who are connected with premises to accept responsibilities, the elaborate nature of the system creates uncertainties which are at the forefront of concerns about the regime.
Immediate Vicinity
An area of difficulty involves those whom the order seeks to protect, - defined as 'relevant persons'. The legislation says such persons include anyone in the immediate vicinity who is at risk from the fire on the premises. Relevant persons on the premises are easy to identify, but it is far more difficult to determine people beyond the premises who may be affected. It is not clear what is meant by the term 'in the immediate vicinity of the premises' and how extensive a geographical area is envisaged. Vicinity is not defined in the Order, and so definitive clarification may need to come through litigation. Whilst on one hand passers-by may be endangered from a fire, on the other extreme we may consider Buncefield and the many nearby businesses that actually became 'affected by fire'.
Suitable and Sufficient
The Order requires the responsible person to 'make a suitable and sufficient assessment of the risks to which relevant persons are exposed' - yet it gives no definition of what suitable and sufficient means. A recent legal precedent was set when a fire risk assessor and a hotel manager were jailed for eight months for breaches against the Order in failing to provide a suitable and sufficient fire risk assessment. The Governments suite of guidance supporting the Order provides some help but it is written in very general terms. It says the form of the assessment will depend on the type and size of the premises; that will be suitable and sufficient for one premises will not be suitable and sufficient for another; and that it is for the enforcing authorities to determine if an assessment is suitable and sufficient. The years ahead will surely yield decisions which will throw some clarity on these specific areas.Enforcement and Guidance
Fire Services no longer have to examine a detailed fire certificate for premises as under previous legislation, but now have to evaluate the suitability of risk assessments for potentially complex premises. They have to identify not only infringements but also whether failures place relevant persons at risk of death or serious injury from fire. Such professional judgements are not only being made upon the contraventions but significantly, they are now making decisions on the potential consequences. Government obviously play a vital role in the guidance documents that are provided for both responsible persons and also the enforcing authorities. Such guidance documents are not a prescriptive solution, but are reference points, and the lower courts have taken the line in a number of appeals against notices that appellants will fail unless they can show that they have complied with the standard of fire safety recommended in the relevant guide. It is also not acceptable for the enforcers to impose standards over and above those recommended in the guides. Due to the significance of the guides perhaps they could have been made the equivalent of an Approved Code of Practice.
History Being Made
All of the cases that have already been through our courts and future proceedings of litigation are forming the precedents for future judgements so we are literally witnessing history through our courts. Clarification is continually being sought for the contentious issues which will lead to the ultimate success of the Fire Safety Order. The healthy development of the Order is crucial towards improving fire safety and we must all work together!
Labels: Knowledge
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