PRIMARY AUTHORITY & FIRE SAFETY Operating as an ‘enforcing authority’ April 2014

CONTENT When and how does Primary Authority affect how you do your job? What is Primary Authority?  Inspection plans  Primary Authority Advice  Notifications of enforcement action  The Primary Authority Register How is it working in practice?

WHEN DO YOU NEED TO THINK ABOUT PRIMARY AUTHORITY?

FOUR KEY STAGES 1.When you are planning or programming proactive visits, such as inspections, other checks on business compliance or advisory visits 2.When you are carrying out proactive visits 3.When you receive a complaint or enquiry about a business 4.When you are considering how to deal with non-compliance by a business

FOUR KEY QUESTIONS 1.Is the business in Primary Authority? Check the Primary Authority Register IF SO, 2.What must I do to comply with the law? 3.How can the primary authority help me to do what I need to do more efficiently and effectively? 4.How can I support the primary authority in ensuring the business is regulated effectively?

PRIMARY AUTHORITY REGISTER A secure database holding details of all nominated partnerships Can be accessed only by registered users Available to:  local authority officers regulating businesses  national regulators and policy departments  businesses in direct partnerships  co-ordinators

WHAT IS PRIMARY AUTHORITY?

STATUTORY BASIS OF THE SCHEME A statutory scheme established by the Regulatory Enforcement and Sanctions Act 2008 (‘RES Act’) The scheme provides for a partnership between a business and a single local authority - its ‘primary authority’, in a specified area of regulation Partnerships are formed through nomination by the Secretary of State A primary authority is entitled to recover its costs for providing primary authority services The Act creates a number of statutory duties for ‘enforcing authorities’

KEY ASPECTS OF PRIMARY AUTHORITY About regulation by ‘local authorities’, in specified regulatory areas The primary authority provides advice and guidance which is assured through a statutory mechanism The primary authority can guide local checks on the business, for example by publishing an inspection plan The primary authority shares information and intelligence, guiding consistent and proportionate regulation A primary authority is entitled to recover its costs from a partner business

PRIMARY AUTHORITY SCOPE Regulatory scope is defined under section 4 and schedule 3 of the RES Act Fire safety regulation was excluded by Order when the scheme came into force in 2009 List of Primary Authority Categories Devolution – limited scope in Scotland and Northern Ireland

BUSINESS ELIGIBILITY (1) A business regulated by more than one fire and rescue authority  Premises in multiple local authority areas eg. retail chains, hotel, restaurant and pub chains Described in the statutory guidance as a ‘direct partnership’

DIRECT PARTNERSHIPS Business Primary Authorit y Enforcing Authority Enforcing Authority Enforcing Authority Nominated partnership

BUSINESS ELIGIBILITY (2) A business that is part of a group of businesses collectively regulated by more than one fire and rescue authority, where these businesses ‘share an approach to compliance’:  Members of a trade association that provides regulatory guidance on which the businesses rely;  Franchisees following compliance controls specified by the franchisor;  A group of related companies following the same compliance controls. Described in the statutory guidance as a ‘co-ordinated partnership’

CO-ORDINATED PARTNERSHIPS Business 1 Co-ordinator Shared approach to compliance Business 2 Business 3 Business 4 Primary Authorit y Nominated partnerships

FEATURES OF PRIMARY AUTHORITY The scheme encourages a flow of information, and the use of that information  to drive improvements in compliance  to target enforcement resources where they are most needed  to inform consistent and proportionate responses to non- compliance The primary authority has three statutory ‘tools’ it can use:  An inspection plan  Primary Authority Advice to the business  Primary Authority Advice to Local Authorities Primary Authority Advice is underpinned by the statutory requirement for notifications of proposed enforcement action

INSPECTION PLANS A primary authority is able to produce an inspection plan –to guide enforcing authorities –to enable the primary authority to build a detailed picture of where the business is getting it right and where there are problems Can address programmed, planned or proactive interventions Can’t make requirements in respect of reactive interventions in relation to matters of specific concern about the business Only apply to fire safety visits under the FSO

INSPECTION PLAN PROCESS Developed by the primary authority, in consultation with the business(es) Must meet the requirements of the statutory guidance Takes effect only when it is consented to by the Secretary of State and published via the Primary Authority Register

NATURE OF INSPECTION PLANS Setting out requirements that enforcing authorities must follow –National inspection strategy co-ordinated by the primary authority –Activities not to be undertaken locally –Policies/ procedures not to be reviewed –Targeting local inspection activity Providing information to assist enforcing authorities Gather feedback

INSPECTION PLANS – STATUTORY DUTIES An enforcing authority must follow any requirements of a published inspection plan when:  planning proactive work; and  carrying out proactive interventions The enforcing authority can request agreement from the primary authority to an alternative approach The request should be submitted via the Primary Authority Register, setting out the alternative approach and the reasons for it Where an inspection plan requires feedback, this must be provided

PRIMARY AUTHORITY ADVICE Primary Authority Advice can be issued by the primary authority to:  a business ie. advice on compliance  to local authorities ie. advice on how to exercise their regulatory function in relation to the business Primary Authority Advice is issued  directly to the business, in the case of a ‘direct partnership’  via the co-ordinator, in the case of ‘co-ordinated partnerships’

PRIMARY AUTHORITY ADVICE Primary Authority Advice to a business may:  address questions of interpretation or applicability of the law  address the suitability of a business’ control systems eg. procedures that set out the precautions that a business will take to avoid breaches Primary Authority Advice is described as providing ‘assurance’ to the business because a primary authority is able to direct against enforcement action proposed by the enforcing authority that would be inconsistent with the advice

THE NOTIFICATION PROCESS (1) The legislation requires enforcing authorities to notify all enforcement action to the primary authority. This is done via the Primary Authority Register Notification is usually required prior to taking the action In limited, specified circumstances notification may be retrospective –specified notices –action that is urgently required to avoid a significant risk of harm... –where notification prior to taking the action would be wholly disproportionate

THE NOTIFICATION PROCESS (2) Notification of proposed action provides the primary authority with an opportunity to consider the enforcement action, and to direct against it where it is inconsistent with Primary Authority Advice given Where the primary authority doesn’t direct against the proposed enforcement action, the enforcing authority, if it wishes to proceed, must first notify the business via the Primary Authority Register

STATUTORY DETERMINATION PROCESS Only applies once proposed enforcement action is notified Referrals to determination can only be made with consent from the Secretary of State Referral is a measure of last resort where there is disagreement as to whether Primary Authority Advice: –was ‘correct’ –was ‘properly given’ –is ‘inconsistent’ with proposed enforcement action Application to Secretary of State may be made by any of the 3 parties, in specified circumstances

HOW IS PRIMARY AUTHORITY WORKING IN PRACTICE? UPDATE (as at March 2014) Almost 1500 businesses Over 120 local authorities and fire and rescue authorities A variety of business sizes, from micro businesses to multi-national manufacturers and retailers Increasing proportion of small businesses A range of business types and sectors

EXAMPLES OF GOOD PRACTICE Helping businesses to comply and grow Providing assurance Reducing compliance costs Reducing ‘gold plating’ Using feedback from enforcing authorities Sharing specialist knowledge

KEY MESSAGES TO TAKE AWAY Primary Authority is there to help local regulators to do their job Primary Authority is statutory – you, as an officer of the enforcing authority, will have to meet the requirements of the scheme when dealing with businesses that have a primary authority for fire safety The Primary Authority Register holds all of the information you need, so use it – if you aren’t registered yet then make sure you do register

FURTHER INFORMATION BRDO operates the scheme and provides information and training Website: ( nd/fire-safety) nd/fire-safety General on Twitter or our LinkedIn groups: Better Regulation and Primary Authority Network