The Fire Safety Act 2021: A missed opportunity

On the 29^th April 2021 the clerk to the House of Lords uttered the time honoured Norman French words Le Reyne le vault signifying that the Fire Safety Bill had received Royal Assent and the Fire Safety Act 2021 passed onto the statute books. Unlike most things Grenfell related the Act came into force with comparatively little hullabaloo.

The House of Lords made several attempts to amend the Fire Safety Bill, the most notable of which was a clause prohibiting remediation costs for dangerous cladding, fire doors and insulation, from being passed on to residents, the consequence of which was a sedentary passage through the parliamentary process. The amendments were rejected by the House of Commons five times in total.

The purpose of the Act is to amend the Fire Safety (Regulatory Reform) Order (FSO) 2005, thereby ensuring that people feel safe in their homes, and a tragedy like the Grenfell Tower fire can never happen again. The Act is a short technical Act that runs to a mere four sections. The first of which clarifies the jurisdictional reach of the order, the principle issue that generated so much concern since the Grenfell Tower fire.

“(1A) Where a building contains two or more sets of domestic premises, the things to which this order applies include:

• the building’s structure and external walls and any common parts;
• all doors between the domestic premises and common parts (so far as not falling within sub-paragraph (a)).

(1B) The reference to external walls include:

• doors or windows in those walls, and
• anything attached to the exterior of those walls (including balconies).”

Fire risk assessments will now be required to cover the external façade and common parts of a building addressed by the Act . The National Fire Chiefs Council estimate that this change will result in approximately 1.7M residential buildings in England and Wales requiring further fire risk assessment.

Many would argue that the natural and normal construction of the FSO 2005 covered the external parts of a building in any event; particularly so when taken with the contents of the Public Access Standard (PAS) 79 2012[1] and the Local Government Association (LGA) Guidance both of which reinforced the importance of fire risk assessment of the external parts of homes of multiple occupation.

Section 2 of the Act provides for power to change premises to which the FSO applies, by statutory instrument without recourse to the parliamentary process. There is nothing at all new about the inclusion of a saving provision in an Act of Parliament, the general interpretation of the provisions of s. 2 by safety practitioners being that the phase 2 Grenfell Report will be more swiftly incorporated into law under the operation of s.2 than otherwise. However, minded of the staggering number of safety breaches revealed by the Grenfell evidence it may well be that s.2 is utilised in conjunction with the secondary legislative program planned as a consequence of the Building Safety Bill to cover a diverse range of topics such as construction materials, smoke ventilation systems, regulation of fire risk assessors, fire fighter lifts, evacuation lifts, evacuation planning and personal evacuation plans for residents.

In his closing remarks to the House of Lords, Lord Stephen Greenhalgh, The Minister of State for the Ministry of Housing, Communities and Local Government, said: “The Bill represents a significant step towards delivering meaningful change so that a tragedy like that at Grenfell Tower can never happen again. The Government are, and always have been, committed to implementing the Grenfell Tower Inquiry phase 1 recommendations. The Fire Safety Bill is the first legislative step in this process, and, as I have stated before, we are committed to delivering the Grenfell recommendations through regulations following the fire safety consultation.

The main body of the FSO whilst clearly modelled on the HSWA 1974 does not faithfully repeat some of the core foundations of the 1974 Act, such as reasonable practicability, and thereby does more to confuse than illuminate. It is one of the great anachronisms of our legal system that practitioners have little if any input outside of being called before a parliamentary select committee or responding to a consultation to prospectively shape future legislation. The FSO 2005 has now been in force for many years yet there is no reported authority on its application or scope or which tests any of its provisions. With the coming into force of the 2021 Act an opportunity has been lost, the many shortcomings of the FSO have remained untouched, free from clarification or revision.

[1] Fire Risk Assessment: Premises Other than Housing 2012; now withdrawn from the BSI on line shop and replaced by PAS 2020 which is not compliant with the FSO 2005 as amended.

Dr Austin Stoton
2 Bedford Row
June 2021

Dr Austin Stoton is a member of the 2 Bedford Row Health and Safety Team. He is a Chartered Engineer and a Fellow of the Institute of Chemical Engineers. He practices exclusively in safety and environmental work and has been instructed in a number of high profile cases including Buncefield, Tata Steel and Grenfell.