R London Borough of Islington and Others v The Mayor of London and Others Fire Brigades Union (Interested Party)

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMr Justice Foskett
Judgment Date20 December 2013
Neutral Citation[2013] EWHC 4142 (Admin)
Docket NumberCase No: CO/14653/2013
Date20 December 2013

[2013] EWHC 4142 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Justice Foskett

Case No: CO/14653/2013

Between:
The Queen on the Application of London Borough of Islington (1)
London Borough of Southwark (2)
London Borough of Camden (3)
London Borough of Tower Hamlets (4)
London Borough of Hackney(5)
London Borough of Lewisham (6)
London Borough of Greenwich (7)
Ingrid Richardson (8)
Claimants
and
The Mayor of London (1)
The London Fire Commissioner (2)
The London Fire and Emergency Planning Authority (3)
Defendants

and

Fire Brigades Union(1)
Interested Party

Daniel Stilitz QC and Hannah Slarks (instructed by London Borough of Islington) for the Claimants

Richard Drabble QC and Charles Banner (instructed by Transport for London Legal Department) for the 1 st Defendant

Jonathan Moffett and Heather Emmerson (instructed by Legal and Democratic Services, London Fire and Emergency Planning Authority) for the 2 nd and 3 rd Defendants

Antony White QC and Sarah Hannett (instructed by Thomsons Solicitors) for the Interested Party

Mr Justice Foskett

Introduction

1

Against the background of a need to make significant savings of expenditure in 2013–4 (in the region of £29.5 million) and 2014–5 (in the region of £35.5 million) in relation to the cost of the provision of fire and emergency services in London, decisions were taken in August and September this year which, if implemented, would have the following principal effects:

(a) the closure of 10 London fire stations (reducing the number from 112 to 102);

(b) the decommissioning of 14 fire appliances (in other words, reducing the number of fire engines from 169 to 155);

(c) the reduction by 552 in the number of fire-fighters in London (a reduction of approximately 10% of the total fire-fighting force).

2

If implemented, the impact of this decision across the whole of London will be to increase the average attendance time of the first fire engine at an incident to 5 minutes 33 seconds (an increase of 13 seconds from the current position) and the average attendance time of the second fire engine to 6 minutes 32 seconds (an increase of 10 seconds from the current position). However, it is the specific effect upon the seven Claimant boroughs of increased attendance times generally that underlies the claim made in these proceedings.

3

During the period from 2009/10 to 2012/13 budget savings of £52 million had been made across the London fire and rescue services necessitated by the Government's 2010 'Comprehensive Spending Review' which required the fire service nationally to save 25% over the 4-year period to April 2015. Savings totalling £71 million had been made over the five years prior to the consideration of the proposals under challenge in these proceedings. The savings thus made had not hitherto affected "front line" services in London, but the need to make yet further significant savings in the light of the provisional Local Government Finance Settlement for 2013–14 (which set out Government grant funding for every local authority), published for consultation on 19 December 2012, made this a necessary consideration for the first time.

4

The need to make the cuts in expenditure is not under challenge in these proceedings. It is the manner in which the cuts are to have an impact that forms the backdrop to the issues before the court.

5

The formal decision under challenge in these proceedings is embodied in what is known as the "Fifth London Safety Plan 2013–16" ('the Plan' or 'LSP5'). Prior to its ultimate acceptance it was known as "the draft Fifth London Safety Plan" ('the draft Plan').

6

It hardly needs stating that the decision and the process that led to it have been controversial and that the issues surrounding the decision are sensitive from a number of points of view. People are, understandably, very concerned when they hear that their local fire station may be closed or that the number of fire engines and/or fire-fighters in or who serve their locality are to be reduced. Their elected representatives have reflected these concerns during the debates and votes that have taken place. The concerns have led to petitions, local demonstrations and strong opposition from some quarters.

7

It is important that anyone interested in this case and its outcome should understand the extremely narrow basis upon which the court is being asked to interfere with the decision made. The hearing does not constitute a public inquiry into the fire safety proposals for London and it has not involved an evaluation of competing evidence about the proposals. The case is also not about whether the court agrees or disagrees with the proposals. What is the subject of legal challenge in these proceedings is primarily the process by which that decision was reached. Whatever conclusion may be reached by the court in relation to this challenge, it is important to understand that the court's focus is primarily upon the process leading to the making of the decision, not upon the merits of the decision itself or any individual aspect of it, or indeed upon how relevant factors were weighed in reaching the decision: those have always been matters of judgment for the elected decision-makers with the help of advice from those with expertise in the field. The court is not the place where any such decision is made and, of course, any political issues that may arise are not matters for the court either. The issue for the court in this case is primarily whether the process by which the decision was made has led to an unlawful decision, as is contended by the Claimants (and supported by the Fire Brigades Union — 'the FBU'), or to a lawful decision, as is contended by the decision-makers.

8

The principal decision-makers for this purpose were the Mayor of London ('the Mayor') and the London Fire and Emergency Planning Authority ('LFEPA'). The substantive reality is that it was the Mayor who made the decision based upon advice from and the recommendations of the London Fire Commissioner ('the Commissioner') although that fact may not be conclusive as to who should have been made parties to the present proceedings (see paragraphs 403–410 below) and the relief sought. The Commissioner is employed by LFEPA and may only exercise the functions delegated to him by LFEPA: he does not have a statutory role as such. The report and recommendations of the Commissioner upon which the decision of the Mayor was founded are criticised by the Claimants and the FBU in these proceedings.

9

The FBU represents over 90% of the uniformed staff of the United Kingdom fire and rescue service and has in the region of 41,000 members. They include fire-fighters, area managers, emergency fire control staff and fire-fighters working in what is known as the retained duty system. (Retained fire-fighters have other occupations than merely that of fire-fighter, but respond to an emergency call to become part of a team that attends an incident.) The FBU has over 5000 members in London.

10

It is right to observe that LFEPA as a body was not in favour of the Plan (in the sense that a majority of its members voted against its adoption), but reluctantly accepted eventually that in law it had to comply with a direction from the Mayor to implement it. However, notwithstanding that background fact, LFEPA joins with the Mayor in rejecting the criticisms made in the present proceedings of the process by which the ultimate decision was made. The Commissioner rejects the criticisms of his report and recommendations and contends that it is not open to the Claimants to bring, as indeed they seek to do, a free-standing claim for judicial review of his report.

11

The parties advancing the criticisms are seven Inner London boroughs (Islington, Southwark, Camden, Tower Hamlets, Hackney, Lewisham and Greenwich) and one individual, Mrs Ingrid Richardson. Each of those boroughs claims that its residents, particularly certain vulnerable sections of their communities, will be seriously affected by the Plan if implemented. I will say more about the position in each individual borough later (see paragraphs 101–128 below).

12

Mrs Richardson (the 8th Claimant) and her husband live in the Brunswick ward of Southwark on the 7th floor of a 15-storey apartment block. Mrs Richardson, who is housebound and moves about with a walking-frame, has severe Parkinson's Disease and her husband suffers from Alzheimer's disease. Her participation in the proceedings as a claimant is designed to highlight and illustrate the impact that the Plan is said to be likely to have on older and disabled residents in Southwark.

13

The other Interested Parties in these proceedings are listed in Appendix 1 to this judgment. Of those interested parties, as I have indicated, the FBU supports the challenges made by the Claimants and makes its own submissions in support. None of the other interested parties has played any part in the proceedings.

14

The final decision in the process (that made by LFEPA) was made on 12 September following the direction from the Mayor dated 2 August (see paragraph 66 below). The claim for judicial review was received in the Administrative Court Office on 3 October. On 17 October Ouseley J directed a "rolled up" 3-day hearing commencing on 26 November with the substantive claim for judicial review to proceed immediately if permission was granted. He gave detailed directions in relation to the preparations for the hearing that were modified slightly on 29 October. In the event, the hearing did go into a fourth day for an hour or so.

15

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