The Fire (Scotland) Act 2005 deals with the law relating to fire prevention and safety, replacing old legislation, and modernising the operation of the Fire and Rescue Service. Those parts of the Act that relate to the powers and duties of the Fire and Rescue Service came into force in August this year, but of more direct relevance in commercial terms is Part 3 of the Act, originally planned to come into force next spring, but which will not now take effect until October 2006 at the earliest.

Part 3 of the Act will introduce a new fire safety regime in Scotland, and consolidate and rationalise existing fire safety legislation, replacing the Fire Precautions Act 1971, and a variety of regulations.  The new Act specifies general duties in relation to workplaces and other premises and determines the enforcing authorities of the legislation, setting out their duties and powers.

Who is affected by the Act?

The Act sets out the fire safety duties for relevant premises in Scotland.  The expression "relevant premises" is defined in the Act, and most premises, apart from private homes, and specifically exempted premises such as those occupied by the armed forces, are included in the definition.  As a result, with the exception of self-employed people with no employees who work from their own home, all sectors of business, including the self-employed, the voluntary sector and charities, will be subject to the new single fire safety regime.  The Act will apply to all workplaces with one or more employees, and will also apply to houses licensed as Houses in Multiple Occupation and those subject to certain control orders or management orders.

What are the duties under the Act?

The Act introduces a new fire safety regime based on risk assessment, and places a duty on employers, employees, managers, owners and others in relation to fire safety.  In general, the Act seeks to ensure the safety of persons in premises from harm caused by fire, by setting out fire safety responsibilities.  These are identified in terms of seven general requirements:

  • Conducting a fire safety risk assessment of the premises;
  • Putting in place fire safety measures identified as necessary after a risk assessment has been carried out;
  • Implementing these fire safety measures through reducing risks;
  • Establishing arrangements for the continuing control and review of the fire safety measures;
  • Complying with the fire safety regulations;
  • Keeping the fire safety risk assessment and the result of that assessment under review; and
  • Maintaining records.

How will the regime be enforced?

Enforcement authorities, the Health and Safety Executive and local authorities, will have the power to enforce the fire safety regime.  Enforcement officers appointed by enforcement authorities will have powers to enter premises for the purposes of inspection and can require that information, documents or records be produced.  Enforcement officers can serve:

  • a prohibition notice on the occupier of the premises where it is considered that use of the premises will involve such a serious risk that it should be prohibited or restricted. This will particularly be the case where an escape route is affected;
  • an enforcement notice where it is considered that a person has failed to comply with their duties under the legislation. The notice will outline the alleged breaches and provide at least 28 days for them to be rectified;
  • an alteration notice where it is considered that there is a serious risk of harm from fire, or where a proposed alteration of the premises, or change of use would result in such a risk.

Failure to carry out duties imposed by the legislation is an offence, and where the breach could put people at risk of death or serious injury, a person found guilty can be fined up to £20,000 and/or imprisoned for up to two years.  Other less serious breaches could result in a fine of up to five on the summary scale, currently £5,000.

Removal of obligation to obtain a fire certificate

Currently, under the Fire Precautions Act 1971, the owners or occupiers of premises are obliged to obtain a fire certificate if the premises are used in certain prescribed ways.  When the new legislation comes into force, this requirement will be abolished.

Fire Safety (Scotland) Regulations 2006

Draft Fire Safety (Scotland) Regulations 2006 have been published, which provide further guidance on what is required to comply with the Act.  Much of the content of the Regulations replicates the current workplace fire precautions legislation.  The inclusion of these provisions in the Regulations extends their application to non-workplaces to which the new fire safety regime will apply, such as Houses in Multiple Occupation.

The Act imposes duties on employers, persons in control of premises and others in relation to the carrying out of fire risk assessments, putting in place fire safety measures found to be necessary, and obliging them to review the fire risk assessment.  Part II of the Regulations make further provision in respect of these fire risk assessments, including the review criteria for risk assessments, the duty to consider fire safety risks to young persons, and the duty to record information.

Part III of the Regulations provide more specific requirements that sit alongside the general requirement in the Act to implement fire safety measures. These measures include ways to reduce the risk of fire and the spread of fire in relevant premises, means of escape and ways of ensuring it is effective and safe, and measures in relation to detecting and fighting fires.

Further Scottish Executive guidance

The Scottish Executive has announced a campaign focusing on fire safety to raise awareness of the new legislation and to ensure increased compliance. The Executive plans to provide further guidance to explain the responsibilities of owners, employers, occupiers and employees under the Act.  Separate sector-specific guides will be produced, to complement the new legislation.  The first of these, to assist those who have responsibility for ensuring fire safety in premises providing residential care in Scotland, has been produced in draft form. Further guides will be produced dealing with fire safety responsibilities in:

  • Offices and shops;
  • Factories and warehouses;
  • Premises providing sleeping accommodation;
  • Educational premises;
  • Large places of assembly;
  • Small and medium places of assembly;
  • Theatres and cinemas;
  • Healthcare premises;
  • Outdoor events; and
  • The transport network

The full text of the Fire (Scotland) Act 2005 is available from the OPSI website at: http://www.opsi.gov.uk/legislation/scotland/acts2005/20050005.htm.

The draft Fire Safety (Scotland) Regulations 2006 are available from the Scottish Executive website at: http://www.scotland.gov.uk/Resource/Doc/57346/0016857.pdf.

For further information, the Scottish Executive has produced a note on the draft Regulations, also available on its website at: http://www.scotland.gov.uk/Resource/Doc/57346/0016858.pdf

The residential care draft fire safety guide is also available from the Scottish Executive website at: http://www.scotland.gov.uk/Resource/Doc/76169/0019678.pdf.

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