One of the most common questions I’ve been asked by fire officers throughout my time dealing with fire safety matters is whether a conflict of interests would arise with their employers if they started carrying out fire risk assessments on a private basis.
This question usually results following a request to their employer fire service to allow them to earn a second income by doing fire risk assessments for private businesses. Those requests would usually be met with a refusal, on the basis that, as enforcers of the Fire Safety Order within their role as fire officers, conflict may potentially arise if one of their fire risk assessments was called into question.
I would usually agree with that position (to be fair, so would the fire officer), and the compromise would usually result whereby they would be allowed to carry out fire risk assessments outside the fire service’s area of enforcement.
More recently, I have been asked, what I initially thought to be an odd question, whether a conflict of interests may arise if a fire authority itself began carrying out risk assessments in its own enforcement area.
My response would usually be the same, that clearly a conflict of interest may arise if a fire risk assessment carried out by the fire service was called into question, because the enforcing authority would have to enforce against itself – a ridiculous proposition. Or so I thought, until I learned that this was not a hypothetical question. It is, in reality what has happened.
Some Fire Authorities have now begun setting up limited companies, not just to provide fire risk assessments, but to provide a whole range of fire risk management services. At first glance, this may seem a logical step. Why not let the people who know all about compliance do it for themselves?
Well, first of all, do they know all about compliance? Does a former firefighter, new to a fire safety department know more than a risk assessor with 20 years experience? I recently had a case where a fire officer outlined, interpreted and applied PAS 79 to a case and when an expert report questioned his interpretation in detail, the prosecution chose not to rely on his evidence any further.
I will leave that one there.
But the conflict of interest point in relation to enforcement still remains.
And what if the client/RP has concerns about the quality of a risk assessment provided to them by the fire authority owned fire safety company? Where do they go with that?
From a purely business point of view, is it fair that independent businesses should have to compete against government backed, publicly funded commercial competitor?
Not surprisingly, the HMIFRS picked up on these points and others, during its audit process in 2019/20. When auditing one fire service, who had a trading arm, the Inspectorate raised concerns about the demands placed upon protection officers who had to balance their enforcement duties with their commercial duties. The HMIFRS report made the following points:
“In the context of the workload pressures faced by frontline staff and the backlogs in the risk-based inspection programme, we are concerned that at the same time some staff are being made available for commercial activities.
…we are concerned that the current supply of staff to the business is affecting the inspection programme, which is a primary responsibility of the service.”
And, most significantly,
“We are also concerned this arrangement has the potential to create a conflict of interest…. FRS staff, working on behalf of the business, provide fire safety advice in premises which may later be subject to inspection audits. If the fire safety advice was found to be defective or inadequate, this would create a position where ….. FRS was criticising work completed by its own members of staff. Staff completing these audits might find it difficult to remain objective in such circumstances or reluctant to make criticisms.”
But there is a far more concerning issue, which was not considered by the Inspectorate.
What happens when a fire and rescue service, who has a trading arm, starts to investigate, enforce against and prosecute its commercial competitors?
Does that seem fair?
There is case law which states “where there is a potential conflict between a financial interest in the outcome of a prosecution and the objectivity required of a prosecutor the prosecutor must be scrupulous in avoiding any perception of bias”(Scott 2019 EWCA – Crim 205 2020 4 WLR 2)
A prosecution or enforcement may be fully justified in some cases, but how does it look? A prosecutor with a trading arm, prosecuting a company or an individual who is a direct competitor. Is it a fair fight for an individual or company to have to justify its work in the courts against the weight of a full fire and rescue service with a potential interest in removing the competition. If nothing else, it seems to fly in the face of the Lord Chief justice Hewart’s frequently quoted words from almost 100 years ago that “Justice must not only be done, but must also be seen to be done”.
I am acutely aware that the budgets of fire and rescue services have been cut by up to one third over the last 6 or 7 years and fire safety departments have been significantly hit by those cuts. I do not criticise any desire to provide funds for fire protection departments, and if commercial enterprise is the only way to boost those funds then so be it.
The reasons for trading may be well-intentioned, and if profits are put to the provision of further fire safety resources for the community then it is hard to argue against, but when enforcing authorities start to venture into commercial activity, public interest arguments might outweigh the benefits of modest profits.
Is the Fire Risk Assessor’s voice being heard?
For a full discussion on the points raised above, join the FSM Webinar on Friday 11th March at 10am.