Memorandum by the Home Office
1997 (S.I. 1997/1840)
The Committee has requested a Memorandum addressing the following
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
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
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"
13th November 1997