Joint Committee on Statutory Instruments Fourteenth Report


Memorandum by the Home Office


  The Committee has requested a Memorandum addressing the following points.

  1. Given that this instrument cites as enabling powers both section 2(2) of the European Communities Act 1972 and the powers under the Fire Precautions Act 1971, explain why the Explanatory Note does not identify the provisions which do not implement Community obligations (see paragraph 2.101A of Statutory Instrument Practice).

  The provisions of the Regulations, for which reliance is placed on the cited Fire Precautions Act 1971 powers, are referred to in the footnote following the citation of those powers in the preamble to the instrument (page 2, footnote (d)). Paragraph 2.101A had not been read as requiring the identification of the provisions in the Explanatory Note itself.

  Whilst the Fire Precautions Act 1971 powers have been relied upon to extend section 10 of that Act (special procedure in case of serious risk: prohibition) to certain additional workplaces not already subject to it, that section as so extended is an important part of the enforcement mechanisms for the new fire safety regime derived from the relevant Directives.

  The Home Office would be prepared, if the Committee considers the information should have been in the Explanatory Note, to make a suitable amendment to that Note for the annual edition.

  2. Regulation 2(1) defines "employee" as a person who is or who is treated as an employee for the purposes of the Management of Health and Safety at Work Regulations 1992 and "employer" as a person who is treated as an employer for the purposes of those Regulations. Identify the provision (of Acts or instruments) which treat a person as an employee and an employer for the purposes of the 1992 Regulations.

  Section 48(3) of the Health and Safety at Work, etc., Act 1974 (the 1974 Act) provides that for the purposes of Part I of that Act and Regulations made under it, persons in the service of the Crown are to be treated as employees of the Crown.

  In addition, under regulation 4 of the Health and Safety (Training for Employment) Regulations 1990 (S.I. 1990/1380) (made under section 52 of the 1974 Act), a person being provided with "relevant training" within the meaning of regulation 2 of those Regulations (work experience or training for employment provided other than on a course run by and educational establishment) is treated, for the purposes of Part 1 of the 1974 Act, as being an employee of "the person whose undertaking (whether carried on by him for profit or not) is for the time being the immediate provider to that person of the training"; the definition of "employee" and related expressions in Part I of the 1974 are required to be constructed accordingly.

   Further, section 51A(1) of the 1974 Act, inserted by the Police (Health and Safety) Act 1997 (the 1997 Act), provides that, for the purposes of Part I of the 1974 Act, a person who, otherwise than under a contract of employment, holds the office of constable or an appointment as police cadet shall be treated as an employee of the "relevant officer" (as defined in section 51A(2)); the definition of "employee" in section 53 of the 1974 Act is amended accordingly (by section 6(1) of the 1997 Act).

  The Management of Health and Safety at Work Regulations 1992 are Regulations made under Part I of the 1974 act and their references to the terms "employee" and "employer" are to be construed accordingly (section 11 of the Interpretation Act 1978).

  3. Regulation 3(5)(i) provides that, for the purposes of these Regulations, an "excepted workplace" is any workplace which is or is in a vehicle for which a licence is in force under the Vehicle Excise and Registration Act 1994 or a vehicle exempted from duty under that Act. It is intended that whether a vehicle workplace is excepted from or is within the Regulations is to depend on whether or not a vehicle excise licence is in force as distinct from whether the Vehicle Excise Duty is or is not required to be paid for the vehicle (so that a licence is or is not required)?

  Regulation 3(5)(i) adopts (in effect) the wording of the existing implementation in health and safety law of the same provision of the same Directive. That is to say it reflects regulation 3(3) of the Workplace (Health, Safety and Welfare) Regulations 1992 (S.I. 1992/3004); and that provision and regulation 3(5)(i) of the present Regulations implement Article 1.2 of the Workplace Directive (89/654/EEC: Council Directive of 30 November 1989 concerning the minimum safety and health requirements for the workplace (first individual directive within the meaning of Article 16(1) of Directive 89/391/EEC)). By reason of that article, that Directive does not apply to "means of transport used outside the undertaking and/or the establishment, or workplaces inside means of transport". Given the very close connection between the present Regulations and health and safety law; and the need to ensure consistent implementation, the present Regulations have of necessity been aligned with these 1992 Regulations.

  It is understood that the policy is indeed that whether a vehicle workplace is excepted from or is within the Regulations depends upon whether or not a vehicle excise licence is in force, as such a licence is an indication that the vehicle is in use as a means of transport (as opposed, for example, to being under construction or left derelict on the employer's premises).

  4. Regulation 5(1) provides that, where necessary in order to safeguard the safety of employees in case of fire, routes to emergency exits from a workplace and the exits themselves are to be kept clear at all times. Regulation 6 provides that, where necessary in order to safeguard the safety of employees in case of fire, the workplace and any equipment and devices provided in respect of the workplace are to be subject to a suitable system of maintenance and need to be maintained in an efficient state, in efficient working order and in good repair. Identify the circumstances in which it would be unnecessary for these duties to apply.

  The Regulations here do not seek to place any greater burden on employers than is required by the Directives.

  It is not practicable for the Home Office comprehensively to list the various factual circumstances in which it may not be necessary to comply with these obligations in order to safeguard the safety of employees in case of fire. Broadly, however, the risk from fire in premises may vary depending upon time of day or night or seasonally. For example, in circumstances where a factory is closed for maintenance it may be necessary to block one or more emergency exits in order to do the necessary work (the remaining exits being sufficient for the staff then present). Further, seasonal changes in work patterns may give rise to significant staff reductions and, as a result, some fire precautions (for example emergency lighting in areas not currently being used) may not require maintenance for the period of reduced working. Certain emergency exits may only be required where certain activities are under way in the workplace.

  5. Regulation 13(3)(b) requires a fire authority (before it serves an enforcement notice on a person) to afford him an opportunity to make representations in accordance with the notice of intent "where he so requests making and giving effect to arrangements for him to make oral representations". Is this regulation intended to give a person a right to make written representations and, if he so requests, oral representations? A similar question in relation to regulation 16(2)(b).

  The intention here is to give a person the right to make representations, which may be oral if he or she wishes. Regulations 13(3)(a)(iv) and 16(2)(a)(iv) provide that the notice of intent in each case is to state that the person on whom it is served may "within a period specified in the notice of intent, make written representations to the authority or, if he so requests, make oral representations to a person nominated by the authority" (our emphasis).

13th November 1997

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