Now that the 10 year anniversary of the FSO has passed, perhaps it is time consider whether amendments or reforms to the Order are necessary? I’m not aware of any proposed reconsideration of the workings of the Fire Safety Order or whether there are any plans for reform, but in my view, there are areas where the legislation can be improved.
For me, the most obvious area for reform is in the area of identifying responsible persons under the order. I have no doubt that it is this aspect of the order, which causes the most confusion, not only to fire officers, but also to those responsible for the safety of their premises.
Presently, article 3 deals with the definition of responsible persons and article 5 deals with persons with control. Whilst I understand that employers should be distinguished from other responsible persons to ensure compliance and consistency with the Health and Safety at Work Act, the combination of articles 3 (b) (i), and (ii), together with articles 5 (3) and (4) create confusion and the lack of clarity when establishing those against whom enforcement should be taken. As article 5 (3) imposes the same responsibilities laid out in article 3 on those with any control over premises (the extent of their control). I cannot see why article 3 was not made much simpler by replacing article 3 (b) with the contents of articles 5 (3) and (4).
A reform of this nature would ensure that all those with control of premises would be called responsible persons and the confusing aspect of article 3 (B) would be removed. Articles 30, 31 and 32 treat those with control premises in exactly the same way as they treats responsible persons so no further amendments would be required in respect of enforcement issues.
I have already previously written about my concerns regarding the enforcement of article 27 and the way in which the order treats those who obstruct fire officers less seriously than those who don’t. In my view, article 32 (7) should be amended immediately so that more serious sentencing options are open to the court when dealing with those who deliberately obstruct an investigation or fire officers during the course of their duty. Presently, those who obstruct can only be dealt with summarily by Magistrates Court with a limited small fine, and that is provided the fire services involved can put together a prosecution within the tight 6 month timeframe.
More guidance is also needed in relation to the application of article 27. Fire officers are still confused as to their powers when attempting to gain access to premises of concern, and because the order is silent in respect of many of those powers, more clarification is required.
Reform, amendment or clarification is also required in relation to the service and application of enforcement and prohibition notices. Magistrates courts are frequently confused regarding their powers under the order in relation to enforcement and prohibition notice appeals. The order does not provide assistance in respect of legitimate grounds of appeal, nor does it outline the effects of the appeal process upon the national register for enforcement and prohibition notices.
Finally, the definition of “domestic premises” and what constitutes a “private dwelling” would also benefit from reform. The current definition suggests that the order cannot apply to private living accommodation or to those responsible for such premises, when clearly the order can apply. If a tenant living in private accommodation has any control over the safety of his premises, which may affect the safety of other parts of premises (for example, the communal areas), then the order may apply to a limited degree. On the basis that the Fire Safety Order appears to be preferred as the enforcement tool of choice, as opposed to the Housing Act, further clarity in this regard would significantly assist those who enforce.
It is unlikely that the courts will be able to provide much assistance in the interpretation of the order within the foreseeable future. I’m not aware of any appeals regarding a point of law in respect of the order, finding their way to the Court of Appeal. Any reform would have to come through statutory instruments for a revision of the order (which is easier than with primary legislation). In my view, these areas should be considered for reform as a matter of urgency.