PhilB,
I didn't think that YOUR reference to the MHSW was bizarre, and I apologise for the misunderstanding. One of the points I am trying to make is that the reference to it in Guidance Note 1 is bizarre, as is the reference in the CLG guides to the Signals Regs. You agree that the MHSW regs don't apply if the Order applies, yet don't think it odd that Guidance Note 1 refers to an ACOP for those very regs?
Schedule 1 of the Signals Regs does set down some prescriptive requirements about the type of sign and their locations. Although the overarching requirement of the Signals Regs is for signs to be provided where required by a risk assessment, the presence of this prescriptive information at all is in contrast with the requirments of the Order.
I too have read all the Order, and like yourself would claim to have a degree of understanding in its meaning. I am only trying to stress that whilst, as Thatcher said "guidance is guidance, it is not the law", Courts have interpreted guidance in a more prescriptive manner. Although the guidance notes are issued by the SoS, they are not issued in pursuant of his duties under the Order, as this only requires him to provide guidance to assist responsible persons. The CLG guides are thus the only ones issued under the Order, as they are intended for responsible persons.
I think we are in agreement on one thing - the content of the CLG guides.
Thanks for umpiring nearlythere, but as Midland Retty says a bit of debate must be a good thing. Attend any legal conference and you will hear completely different opinions about legislation.
No Peanut I honestly don’t believe that the reference to the ACOP in the guidance note is bizarre. The ACOP explains, very well in my opinion, what constitutes a suitable & sufficient risk assessment. It did so before the WP Regs or Fire Safety Order were made and it continues to do so today, so to refer to it is entirely appropriate.
Yes Schedule 1 of the signals Regs may appear prescriptive as does article 14 of the Order which says, amongst other things, that exit doors must open in the direction of escape. But the requirement for the measures under both are subject to a risk assessment. i.e. if the FRA does not require exits to open in the direction of escape, they don’t have to, the same applies to the signal regs....in my opinion only of course.
Guidance is guidance, no more and no less and the case law you refer to was pre the days of enforcement appropriate to the risk.
Yes I concur that the SoS is not obliged to issue guidance for enforcers under article 26 in the same way as he must issue guidance under article 50, but the fact is that he has issued such guidance and enforcing authorities must have regard to that guidance. (come on you fellow anorak wearers, read the articles.)
At least we can agree that the CLG guidance is pants and that Nearlythere worries too much.
Debate is good, long may it continue, and although I often do, I never really mean to offend.